





.. “ vP*? 

^ ^ * G U 

^ ,c^k* * c° .a^ °o * 

a,. *bv* :£mfc. ^o 4 r'^m' • 

l* • .0 -7* • * *3 O * <0 v^. * 

r> ^ <£■ •> ^tOMaC ^ <A ^ . c A <7M ^» ^ rjv * 

c^y //viw jk ^ ./. m* \V\ x^x"* ^ \ ^ cyy / / 'l/jSn’ > /\ ^ « 

V ‘ ^ • • / 'V' * *^‘ </ % * ‘ - • ’ / ^ 

^ c . c\ JV sVV% > V r’*°. C> ,0^ *L!oL'* « 



o 


.* ** %> ‘W* / \ 4? 

A <,'••*• A ^ ^TTv* ,a. 

.-^ ,• -'’■’ % r <y <°-°, % <& x - 


o . A * 


.0 





,0 v\ 

» k> <• < ^y / //w<& ’ v’ <£>■. «%>^i 

> -a.^ o * ^uJf*** r\ ^ 

■A *"’• 

v .»;*^-. Sp /.> 

- ^> „ U>1K //) P <^ A c£ * 

O 


^ v 

<£>> A V 

* a v ^ J 

; * & 


5K* WW' /\ l _ 

'•.s % A <* '©•** ,G^ \b *?7'T* T *\ 

^ t *M!* ^ .0* g°".° + **b * 

<* o 

MV «N ^ 

^oV* . 

. £ 

V *•■’* f° V 

- c\ ,o * * • *' O 

° <^ A /> <• 

: ^ v 1 - 

V> ^ ^ °» 

^ 0 ^ ' * * * ^ X ^‘ 

0 ♦ <-c^vv o 


< 


» 

U> 






















O v C ° " ° * 




O v 'O 


c 

v* <y 






C> 

o 

V* % f U ' 

♦ jA^^Ai ° ^ <A <■ 

° ^ V 

° AAv * 

* A % • 

" A 

A i * i '*i- ^ ,o v o».:s. 'o 

N * ^ 'T 


*u 


> V i»V_°* "c\ ^ 0 V * S M'<* 


* A ^'n 

* <fc & * 

* A ^ - 


O V* «. v 


A 




♦ • 


\>* 4 ~& 


o y ^ 0 * 

i? * lisyi^» a ^ -. 

rv * *fcji] \\\\V * *• 

*) r£* «J> " * -<1 * O * 

£° , .. _ ^ 4,0 "° 2 . . °^ 


«/» ^ 




-W 


* * -i 


w * v ' *«. 


,<b \P 

* -A • 

* «v ^ - 

<0 o 

A „ „ „ ^ 


♦ * 


o v o°;.s o 




L« 


- A 

o V 
*0 

X *rk </> 
o, ^ 

' A 0 V *♦..»’ ,■«,’ 

,0’ ,••*', > v 

w 
* A ^ 

^r, - ~ . « » / ^ % \ 

,-A t * 1 ' 9 " ^ r° V ‘!rL°% °> 

* ae/r? 9 ^>*. . G .V 5 $$Wb 0 


b V 

j0 *7* * 

* <K 

* pw ^ ^ 

A 0 <J> !> N 0 J -^ y 

* c^> ^p, 

* v> . 

<r. Ab *r? % s * A 

A # t » . ^ 0^ c °4 G ^ ^o 

^ ^a^rffTTp^ ^ V. . ^ c *A5S^hV"j> 0 ^ / 




,0 


o. *. , -\* r 0 


jut' 


t> * 




4 ^ 




° ^5 b<s 

* ^ o, 

0 aV o 


i b V . ^ 

>y 0 ^ 

,o° V^ %.*'•'" 

y >’A'» > v % *'•«- < 

** ^ : WJV// ,„ .., 

VV ' ° -j^ S 

v^ 


oK 


v* 0 ^ 


a n o J ^ 




o A , 

vP- 


'jb A^ 


S vP, 




O * X 


* V vp- 

* A v A". ^ 


- G v Y o. *^' 7 'r»* A 


0 V c 0 " 0 ♦ 


A 


0 


0 V o 0 " ° ♦ 


oV 


& 


A 




o V 

?y° ^ *1 


V 


^ 'O*. *•'■>* A 0 % *•=.'> , 

^ V A ^ A 

0 d> * * x, a v 

«. ^\\'^-W//>, 0 c? 0 -^l"^ •* 

* ,v/ * mw <» - g vp^ 

^ A, v V 0 


O ^ 1 ° A° <S> 

1 • o , c> «, s . V_' * 


o 

A'*v » 

V °, 


* <\ 'O • A *G' ^ ' • * s 


VA A 
o > 


.0 


5 ' a\ V '° • * ^ 

A •• ^ c° .• 

>* -^0^ : 

: a -, 

' xK o 


A <* A 14 <G’ 

° wo ^ "^o ^ ^ r 0^ 

0 * a?/r 77 ?^- -r 0 


■W 


«, s ’ * 'x. A> V' f> 1 " °x- 0 .‘ A v % 

'A. .A * jaW/A ^ A 


1 * o 



^aVa 





























































































































































































TAKEN BEFORE THE 



IN THE INVESTIGATION OF THE CHARGES AGAINST 


HOIST. RICHARD BUSTEED. 

u 

JUDGE OF THE U. S. DISTRICT COURT FOR THE DISTRICT OF ALABAMA. 






y - *// 


PRINTED FOR THE COMMITTEE. 






WASHINGTON: 

GOVERNMENT PRINTING OFFICE. 

18G9. 











S '..i V % 



( 




1 

5 ) 


40tii Congress, 2d Session, Congress of tiie United States, 

In the House of Representatives, 

July 22, 1888. 

Resolved, That the Committee on the Judiciary be directed to investigate the charges 
against the character and official conduct of Richard Busteed, United States district 
judge of Alabama, with power to appoint a sub-committee, which shall have authority 
to administer the necessary oaths, to employ a stenographer, and send for persons and 
papers, and sit during the recess of Congress, if deemed necessary. 

Attest: 

edward McPherson, cioj. 

/ 


4 1st Congress, 1st Session, Congress of the United States, 

In the House of Representatives, 

April 5, 1869. 

Revolved, That the charges against Richard Busteed, district judge of the United 
States for the district of Alabama, and the testimony heretofore taken by the Commit¬ 
tee on the Judiciary of this house in the last Congress, ])e referred to the Committee 
on the Judiciary, for the purpose of continuing said investigation, with power to act 
through a sub-committee during the recess of Congress, and to send for persons and 
papers. 

Attest: 

EDWARD McPHERSON, Clerk. 


♦ 


I 



INDEX TO WITNESSES 




1. Josiali Morris. 

2. James R. Powell. 

3. William P. Chilton.. 

4. George E. Spencer. 

5. Abraham Martin. 

6. John A. Elmore. 

7. John A. Cuthbert. 

8. Peter Hamilton.■ 

9. Alphonse Hnrtel. 

10. Thomas H. Herndon. 

11. E. E. McCroskey. 

12. Samuel F. Rice. 

13. John F. Johnson. 

14. General Wager Swayue. 

15. John O. I). Smith. 

1G. Governor William H. Smith. 

17. Frank Bugbee. 

18. William D. Dunn. 

19. John C. Keffer. 

20. John H. Garner. 

21. William N. Thompson. 

22. Abner R. Storer.. 

23. Robert T. Smith. 

24. Charles A. Mott. 

25. Jacob Stanwood. 

26. Amos R. Manning. 

27. J. M. Withers. 

28. Thomas Hamilton. 

29. Gustavus Horton. 

30. Lawrence Worrall. 

31. Jacob Wilson. 

32. Rufus F. Andrews. 

33. David Humphreys. 

34. E.C. Y.Blake.... 

35. Price Williams. 

36. Alexander McKiustry. 

37. Milton J. Satfold. 

38. H. C. Semple. 

38£. Transcript from records, (not printed.) 

39. C. F. Moulton. 

40. Robert W. Healey... 

41. John Hardy. 

42. N. M. Trimble. 

43 . James Q. Smith. 

44. Malcomb Graham... 

45. Cornelius Cadle, jr .. 

46. Theodore Nunn. 

47. John Jacob Barnhart 

48. John Hardy. 

49. George Goldthwaite. 

50. Edmund W. Pettus... 

51. Thomas IT. Watts_ 

52. Daniel S. Troy. 

53. Edmund W. Pettus, re-called 

54. Abram Martin. # . 

55. E. C. Y. Blake, re-called- 

56. John Hardy, re-called. 



Page. 

1 

12 

14 

39 

50 

64 

69 

85 

112 

115 

130 

133 

150 

152 

171 

180 

185 

186 
194 
210 
213 
219 
223 
227 
230 
235 
247 
255 
262 
273 
296 
305 
318 
323 
334 
337 
346 
350 


358 

362 

364 

386 

393 

409 

411 

414 

417 

418 
421 
428 
438 

441 

442 

443 
445 
450 





























































IV 


INDEX. 


Page. 

57. Edmund S. Dargan.. 451 

58. J. Little Smith. 456 

59. William G'Jones. 465 

60. Percy Walker. 471 

61. G. H. Cleveland. 477 

62. Robert W. Smith. 481 

63. Owen McMahon. 482 

64. Moses Waring. 488 

65. Charles R. Rice. 491 

66. Charles Walsh. 493 

67. N. W. Trimble. 494 

68. E. C. V. Blake, re-called. 495 














T ESTIMONY 


TAKEN BY THE 

9 

JUDICIARY COMMITTEE, HOUSE OF REPRESENTATIVES, 


IN THE CASE OF 


RICHARD BXJS TEED, 

JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALABAMA. 


Washington, December 30, 18(58. 

Josiah Morris sworn and examined. 

B? Mr. Semple : 

Q. Where do you reside, and what is your business.—A. I reside in Montgomery, Ala- • 
bama; 1 am a banker. 

Q. How old are you, and how long have you been engaged in that occupation —A. I am 
50 years of age, and have been engaged in that business 15 or 16 years. 

Q. State to the committee everything that passed between you and Judge Busteed, in 
relation to the settlement of a decree, which had been rendered against you and one J. F. 
Johnson, for the sum of $30,000, or thereabouts. 

(The question was objected to by Judge Busteed, as assuming facts not proved. The 
witness should be asked what he knows as to the particular charge in question. The ques¬ 
tion was allowed by the committee.) 

A. I think it was on the 14th or 15th of January, 1867, or at least between the 14th and 
the 17th, that I went to Mobile to see Judge Busteed in relation to the settlement of this 
matter. By appointment I met him at his room, probably at 2 or 3 o’clock; I do not 
remember the hour. I was there for the purpose of getting him to allow me to appeal from 
the decision of his court, in the case of the United States and 120 bfles of cotton, repre¬ 
sented by J. F. Johnson and Josiah Morris. Judge Busteed refused to allow me the appeal 
upon the case, from the decision which had been rendered by his court in Montgomery, on 
the 17th of December, 1866. I went down with a blank bond made out, and all the papers 
necessary to cany the case to the Supreme Court, taking my security along with me. 
Judge Busteed had required that he should personally qualify as to whether lie was worth 
the amount required. Judge Busteed declined to grant the bond, on the ground that I had 
not made the proper application within 10 days, and I maintaining that I had done it. The 
consequence was, that he would not allow the bond without the consent of the district 
attorney, and as the matter stood I would have to pay the money, and then appeal upon the 
case. Judge Busteed got his law-book (I am no lawyer) and read to me the law with 
regard to the 10 days. I told him that I was no lawyer, and that I had brought the papers 
down already prepared, so as to save trouble. He said he was sorry I did not have an 
attorney with me; I told him if it was necessary for me to have an attorney I would get one in 
Mobile; but that if it was only necessary for me to have an attorney to explain to me the 
reason why he, the judge, could not grant the bond, there was no necessity of employing 
one. After considerable conversation, in which he explained his views of his rights, and his 
duty as a judge, in which the argument was used that I was afraid of losing the money if 
my appeal should be successful, in case it had been paid into the hands of the court and 
distributed, Judge Busteed said he could not grant me relief, and I got up to leave, saying 
to him that my mission was done, and that I could go no further. Judge Busteed then, as 
I thought, very kindly said to me, “ Why don’t you and Mr. Smith settle this matter ?” [ 

replied that Mr. Smith and myself were not on very friendly, terms; that he had said a 
good many hard things against me, and that I might have said hard things against him ; at 
any rate, we were notion friendly terms now. Said he, “If I could see Mr. Smith I could 



2 


settle the matter.” I replied, “Judge, you have given judgment against me for 30,000 
and odd dollars* and although my attorneys insist that the United States cannot recover one 
cent from me, and that in no event can they ever recover more than the $5,000, paid into the 
hands of Mr. Johnson, if the judgment were reduced to $5,000 I would pay it and not 
appeal.” Judge Busteed remarked, “Mr. Morris, if you are willing to do that, and Mr. 
Smith is not willing to allow me to settle it for the $5,000, T will grant you relief, as you 
have asked for it, by giving you the bond.” I replied, I was very much obliged to him; I 
thought $5,000 ought not be taken from me, but I would prefer paying that to the trouble 
and expense of carrying the suit to the Supreme Court. I remarked that Colonel Powell, 
whom I had taken down to Mobile as bondsman, was very anxious to go to his plantation 
on the Mississippi river ; that I had taken him out of his way, to enable him to qualify in 
regard to his bond, befofe the judge. I could get tail in Mobile, but I preferred to have it 
from Montgomery. Judge Busteed told me to go and get Colonel Powell, and come back to 
his room. I asked him if he would not go with me to Montgomery to-morrow morning, 
and see Mr. Smith, and get him to settle this matter. The judge told Wilson, his valet or 
whatever he was, to go over and ask Mr. Martin to come in. He went out and brought Mr. 
Martin into the room. Judge Busteed said to Mr. Martin, I think I use the very language, 
“Mr. Morris wants me to go to Montgomery with him to-morrow morning, for the purpose 
of settling a very important matter. Canyon spare me two or three days?” Mr. Martin 
remarked, there was a great deal <>f business on hand, that he was preparing some important, 
cases, and that it would be difficult to get along without him. Judge Busteed asked Mr. 
Martin to the window and conversed with him, as I supposed about the business they had to 
do. Mr. Martin turned around after a little and says: “Well, judge, I will try to get 
along without you; I hope you will not be gone more than two or three days.” Judge Bus¬ 
teed said then, he would go with me the next morning. In the meantime I might bring 
over Colonel Powell and he would make the bond. I did go and bring Colonel Powell over 
as my security, and Judge Busteed qualified as to his sufficiency for security,and he signed 
the bond. After we got through he asked us to take a glass of wine, aud we did so. The 
cars were going off very soon, and the judge remarked to Colonel Powell, “ 1 know you are 
anxious to get off, and I have preparation to make to go in the morning.” Colonel Powell 
said, “Judge, as you are going up there, 1 hope you will settle a matter of mine at the 
same time.” As I was going out of the room after my security to sign the bond, Judge 
Busteed’s man, Jacob Wilson, and myself passed out together, Wilson remarking that he 
would take me down through the custom-house by a nearer route ; as we went out into the 
passage Judge Busteed said, “ Jmc b, I want to see you a minute.” He went back into the 
room, telling me to wait a minute and he would go with me. When he returned he 
remarked to me, Judge Busteed says he wants you to give him the $5,0U0, so that when he 
goes up to Montgomery he can settle the whole matter without de'ay. I said I had no 
objections to that, if he would return me the checks in case a settlement was not made. I 
then went down to get Colonel Powell, and on coming up stairs met Mr. Wilson, who 
remarked to me that judge Busteed said there was no necessity of my making the bond, 
that i he whole matter would be arranged. When I left Judge Busteed the arrangement 
was that he was to meet me at the depot the next morning, and we were to proceed to Mont¬ 
gomery together. After 1 had gone back to the hotel, about tea time, Wilson came across 
there, as he said, to get the money. I gave him two checks, one for $‘2,000 aud the other 
for $3,000. I drew tfte checks there in the hotel, and said to Wilson, “You heard our con¬ 
versation between Judge Busteed and myself, and can testify to the understanding that if 
Mr. Smith, the district attorney, refuses to settle the matter for this $5,000, the checks are to 
be returned, and the judge is to grant me my bond. His reply was, “You know that Judge 
Busteed is a gentleman and will do what he said.” I said I supposed he would and gave 
Mr. Wilson the checks, not supposing they would be used, except on the settlement of the 
whole matter,‘and that they would be returned in case the settlement was not made. The 
next morning when 1 came down from my room at the hotel 1 found Jacob there waiting 
for me. He said that. Judge Busteed had some matters to atteud to, and did not want to go 
up that morning, and sent him to tell me that I could go on to Montgomery aud see Mr. 
Smith, the district attorney, aud say to him from the judge not to proceed in the matter of 
the execution, but to meet him at the railroad depot the next morning with his buggy, and 
he would go over with him. I said that Judge Busteed had agreed to go on with'"me that 
morning, and that I believed I would lie over until he went. He replied Judge Busteed 
would prefer that I should go along by myself; this was a case there had been a great deal 
of talk about. I said, “Very well, I will go along.” I reached Montgomery late at night, 
and early the next morning went to Mr. Smith to deliver my message. He said it was all 
right. Judge Busteed came up that night, and the morning afterwards met me at Mr. 
Smith’s office about 10 o’clock. I recollect that he had the papers in his valise, and having 
some trouble in opening it had to break it open to get them out. He and Mr. Smith were 
sitting at the table. He remarked to Mr. Smith, that under the circumstances he thought 
he ought to grant the relief I had asked for. I supposed the remark had reference to reduc¬ 
ing the judgment and settling the matter, as the judge had agreed to do. He went on to 
say that he thought he ought to allow me the bond. Mr. Smith replied, “Judge, you can 
do as you please; I shall not consent.” After talking the matter over for some time, Judge 


3 


Busteed remarked that he was compelled to go to Washington; that he had no time to go 
into this case any further then ; that when he got back he would look into and attend to it. 
Judge Rice, my attorney, remarked, playing upon the judge’s name, that he might get 
bursted on the way, and that he preferred that he would fix this matter before he went. Judge 
Busteed then signed all the papers, called in Mr. Hardy, the marshal, and said, “Do not pro¬ 
ceed in this case until I order you,” to which the marshal assented. He then took all the 
papers, the bond I had made in Mobile, with the citation, &c., put them into an envelope, and 
said, “ Mr. Smith, I will leave these papers with you, to be turned over to the clerk in case 
any accident happens to me ” Mr. Smith did not want to take them. The judge remarked, 
“You will, at any rate, allow me to put the envelope in your safe;” to which Mr. Smith 
replied, “ You can do as you please;” and the judge put tire papers in the vault, with the 
direction, in case of his death, to deliver them to the clerk. I said to the judge, “ I thought 
this case was going to be settled now.” Judge Busteed replied, raising his hand in a pecu¬ 
liar manner, “That is all I can do for you now.” The safe was open, I think, and the judge 
put the envelope into it. He or Mr. Smith then asked us to take a glass of wine, and we 
took a glass. I recollect that the judge made a very tine champagne cocktail. We stayed 
a short time, and when we left the judge remarked that he was going to Washington; that 
I could watch out when he came back, and he would look into the matter. Up to this time 
I thought the judge was acting the friend towards me, in proposing to settle the case ; that 
he had become convinced it ought to be settled. When I heard he had arrived from Wash¬ 
ington, 1 went to my attorney, Judge Rice, and asked him if he had seen Judge Busteed; 
finding that he had not, I went up street and found the judge with a gentleman, who was a 
stranger to me, in a jewelry store; I accosted the judge and said, “I am glad to see you 
ack; when can we have a meeting and arrange that matter!” Said he, “Mr. 
Morris, I am going down to Mr. Stanwood’s plantation to-day, and I have no time to 
attend to this matter; I will be back in a short time and look into it, and arrange it.” 
When he put up the papers in the district attorney’s safe, before going to Washington, he 
said to me, “Mr. Morris, I want you to make an affidavit stating the circumstances of your 
application for a bond within the 10 days and give it to me when I come back, so that l can 
show under your oath what you have endeavored to do, to bring this within the rule in your 
appeal.” He also said to Judge Rice, he wanted him to make a statement of his action in 
the case. I made the affidavit as requested. The conversation I had with Judge Busteed, 
in this jewelry store was the last one I have had with him upon the subject. A short time 
afterwards, L think, between the 20th and 25th of February, I understood that Jacob Wil¬ 
son had stated that I had given him $5,000 to stay the execution against me. Wilson had 
been previously acting* as deputy marshal I concluded, under the advice of my attorney, 
to make an effort to get Jacob Wilson there. On the 25th of February I telegraphed to Mr. 
Wilson, “ Cannot you come and see me to-morrow ? Very important.” On the 26th, I wrote 
him a letter, as follows : 


“MONDAY, February 26, 1867. 

“ Dear Sir : I despatched you on yesterday to know if you could not come to see me at 
once. It is important, all of which I will explain when I see you. The arrangement is not 
being carried out. You said all would be right, should be right. Come and see me at once ; 
despatch us on receipt of this. I am sorry to trouble you, but matters must be attended to. 
You can arrange it. 

“Respectfully, 

“JOSIAH MORRIS. 

“Jacob Wilson, Esq., Mobile, Alabama. 

“I saw Mr. Solomon who said you had been in Selma, but was now* in Mobile.” 

That was the first intimation I had that there was anything wrong in the interpretation I 
had put on the conversation that had passed. I supposed the case would be settled, and I 
tried to get Wilson to Montgomery for the purpose of having it settled. He did not come, 
however, and Judge Rice, my attorney, went down to see Judge Busteed at the Stauwood 
plantation to endeavor to have the papers fixed. When he came back I asked him what he 
had done. He said Judge Busteed had sent a letter to Mr. Hardy, the marshal, to stay the 
execution for further orders, but had not signed the bonds, or anything of the kind. He 
said to me, “Judge Busteed gives a very different version of the story about Jacob Wilson 
from the one you have given.” I said I should like to know it. He replied that the judge 
rrave him the information under the seal of masonry, and he could not tell me. I thought 
it was a very hard case that my own attorney should be prevented from telling me such a 
thing in regard to my own business. I afterwards saw Nathan Stauwood, a brother of the 
man with whom Judge Busteed w r as stopping. > _ .... 

(Mr. Chandler, counsel for Judge Busteed, objected to the witness going into this irrele¬ 
vant matter.) 

Witness. On the 1 6th of March Mr. Hardy, the marshal, wrote to me the following letter : 



4 


“United States Marshal’s Office, Middle District of Alar ma, 

“ Montgomery , Alabama , March 16, 1867. 

“ I must proceed to make tlie money in the case of the United States vs. Morris & John¬ 
son. If you wish to pay the money without advertising property you must attend to it by 
1 o’clock to-day. 

“ Respectfully, 

“JOHN HARDY. 


“Josiah Morris, Esq.” 


In the mean time, however, the effort was made to get Judge Busteed to agree that no 
distribution of the money should be made, and my attorney procured from him this letter, 
which we supposed at the time was satisfactory : 


• “Mobile, March 15, 1867. 

“My Dear Sir: I have again patiently considered the application for a supersedeas in 
the case of the United States vs. Johnson and Morris, and examined the authorities you sub¬ 
mitted in the brief sent me here through the mails. 

“The courteous pertinacity with which you have pressed your professional views of this 
case has created embarrassment in my mind from the first, but upon a calm review ot all the 
circumstances I am persuaded it is my duty to refuse any further interference by way ot 
staying execution. In view, however, of the doubts entertained by many good lawyers 
upon the important question of your right to have had the issues in the case submitted to a 
jury, and in view of the fact that if the money secured by the judgment is made and paid 
over the defendants may thereby suffer irreparable injury, I will, if you desire it, make no 
order for distribution until you have the opportunity to get the judgment of the Supreme 
Court upon the questions involved, but will retain the fund in the registry of the court until 
then, the district attorney advising me there is an informer in the case. 

“ Respectfully, your obedient servant, 

“RICHARD BUSTEED. 


“Hon. Samuel T. Rife, 8fc., &?c., &c.” 


On the 25th of March, 10 days later, I paid the money, $31,689 50, for the entire amount 
of judgment, interest, and costs. I paid it with the understanding on my part, and that of 
my counsel, that the money was to be retained in the hands of the court, and not dis¬ 
tributed. A short time after the matter was thus settled., and we supposed the money still 
remained in court, Judge Busteed wrote a note to my attorney, Judge Rice. 

Judge Busteed. Have y r ou got that note. 

Witness. No, sir. 

Judge BUSTEED. Then you cannot speak of its contents. I have it, and will produce it 
at the proper time. 

Witness. On the 4th of June, my attorney, Judge Chilton, appeared in the United 
States court room to show cause why this money should not be distributed. Judge Busteed 
asked Judge Chilton if he appeared for Mr. Rice. Judge Chilton replied that he appeared 
for Mr. Morris. Mr. Smith was not then district attorney, having been removed. Judge 
Chilton suggested that the district attorney be sent for. Judge Busteed replied, “ You take 
care of yuur side, and we will take care of ours.” Mr. Smith appeared as attorney, and 
made a long argument sustaining the distribution. Judge Chilton made a slight argument 
against it, and Judge Busteed said he would take the case under consideration. I never 
knew, nor have I been able to find what record was made of this matter. The assistant 
clerk, to whom I applied, could not find anything of it. But the money was distributed. 
It may have been made a matter of record. There is no clerk there now, and the deputy 
could not find it. I know from the party who received it that the distribution was made, 
and a partial copy of the statement was furnished me bv Air McCroskey, who professed to 
be the informer. He is a man from Knoxville, Tennessee, who was an informer in cotton 
cases. When this hearing in regard to the distribution was had before Judge Busteed, the 
only persons in the court-house, I think, were myself, Mr. Smith, the former district attorney, 
Judge Chilton, and Mr. McCroskey. When I found that McCroskey had gone off, and that 
there had been a distribution, his attorney, McKinney, gave me this settlement, which he 
said was made by Mr. Smith, the former district attorney. 

[Mr. Chandler objected to the settlement referred 'to being received.] 

By Mr. Eld ridge : 

Q. Were those checks given to Mr. Wilson paid by you.—A. They were. 

Q. In whose favor were they drawn.—A. They were drawn payable to bearer, I think. 

Q. Was there any name inserted —A. I think one check may have had the name of 
Johnson inserted; I am not sure. We were in the habit of drawing our checks payable to 
bearer. They were both paid the 17th day of January. 

By Mr. Woodbridge: 

Q. Were they paid the same day.—A. That I cannot tell. They are down in my account 
current with the bank as having been paid the 17th. They could not have been actually 
paid that day, because it was after bank hours when they were given. 


By Mr. Eldridge : 

Q. Were those checks paid by you in addition to the thirty-one thousand and odd dollars.— 
A. They were. It was my understanding, as I have said, that if this settlement was not 
made, the checks were to be returned. 

Q. Has any portion of that money ever been returned to you.—A. Not a dollar. Mr. 
Smith proposed to pay me back the $5,000 in this way; when I heard of a different version 
being given in regard to the $5,000, I went to James Q. Smith, and stated the whole circum¬ 
stances to him, and he was under the impression, as he said, that Wilson had swindled me 
out of the $5,000, and advised me to have him arrested. He then said he would settle the 
matter, provided Judge Rice would move, in open court, to set aside the judgment, and 
let the case remain open ; that he would then agree to reduce the amount. At one time he 
said he would have settled it for $10,000. After I told him the circumstance of the $5,000. he 
said he would reduce the amount from $30,000 to $25,000, so that I could get back the $5,000. 
I said, “Excuse me, I will have the whole or none. I will appeal the case.” When I 
paid the $31,000 I went to see Judge Rice, to know what steps it was necessary to take, 
and failing to find him, I consulted Major Semple. On the 17th of December, 1800, Judge 
Busteed rendered judgment against me. I immediately, within five minutes, prepared myself 
for what occurred, and had my security in court, ready to give bond to carry the case to the 
Supreme Court. Mr. Blake, the clerk, told me be was busy then, that it made no difference, 
I could give the bond at any time. I went the next day, aud then he told me Judge Busteed 
was busy. The next morning I went with the bond prepared, ready for signature by Judge 
Rice. Blake told me there was no necessity of being in any hurry, that I could get it after 
the adjournment of the court; I said I was anxious to get rid of it. Judge Busteed was 
then on the bench, and after he had adjourned the court, left for Mobile. In the mean time, 
and I think within the 10 days, I filed in Mr. Blake’s office a bond on which he sent a de¬ 
spatch to Judge Busteed, of which this is a copy: 

“Montgomery, December 27, 1868. 

“Hon. Richard Busteed, Mobile : 

“Morris & Johnson have filed writ of error and bond. The bond is in penalty of $60,000, 
properly conditioned; the sureties on it are A. F. Given, William C. Ray, and James R. 
Powell, and are worth more than $60,000 in unencumbered real estate in this district. I have 
approved the bond, and push your approval of it. May I enter your approval of the bond ? 
Answer immediately. 

“E. C. V. BLAKE.” 

To which he received this reply: 

[“Dated Mobile, December 27, 1835.— Reeewel at Montgomery, December 27, 1865.] 
“E. C. V. BLAKE, Esq., Clerk of United States Court: 

“Your despatch of to-day received. The defendants are not pursuing the appropriate 
remedy, as I think now, and after all the reflection I have thus far been enabled to give the 
subject, they must appeal according to the course of the proceedings in admiralty, as specified 
in the 53d of the rules of the Supreme Court. 

“ RICII’D BUSTEED.” 


Immediately afterwards, and within 10 days, we did file a bond. I have here the original 
bond, as drawn by Judge Rice, in accordance with the despatch sent by Judge Busteed, 
and which is as follows : 


“Know all men by these presents that we, Josiah Morris and John F. Johnson, and Wil- 
liam C. Ray, Alexander F. Given, and James R. Powell, are held and firmly bound unto the 
United States in the sum of $60,000, to be paid unto theUnited States, to which payment we 
bind ourselves, our heirs, executors, and administrators, jointly aud severally, firmly by these 
presents. Dated the 27th day of December, in the year 186(5. 

“ Whereas the above bounden Josiah Morris and John F. Johnson have appealed to the 
Supreme Court of the United States from a decree ot the district court ot the United States 
for the middle district of Alabama, bearing date the 17th day of December, 1866, in a cause 
in which the United States was libellant and the said Josiah Morris and John F. Johnson 
were respondents, now therefore the condition ot this obligation is such that it the above 
named appellants, Josiah Morris aud John F. Johnson, shall prosecute their appeal with 
effect and pay all such costs aud expenses as shall be awarded against them as such appel¬ 
lants therein, then this obligation to be void; otherwise, to remain in lull force and effect. 


JOSIAH MORRIS. 

[L. 

S.] 

JOHN F. JOHNSON. 

[L. 

S.] 

WILLIAM C. RAY. 

IL. 

r.] 

ALEXANDER F. GIVEN. 

[L. 

s.] 

J. R. POWELL. 

[L. 

S.J 


“Signed, sealed, and delivered in presence of— 

“Samuel F. Rice. 

“R. B., December 29, 1866.” 

[Busteed put his “R. B.” to show the day it was presented to him.] 


6 


.Judge Rice left fov Mobile that night. That bond was approved by Mr. Blake. It was 
carried down to Mobile to Judge Busteed by Mr. Rice. It did not reach him until two days 
after the ten days had expired, and consequently I could not appeal without paying the money, 
and I did pay it. The bond given, which was properly certified to by Judge Busteed, we 
have never been able to get back. 

By Mr. Woodbridge: 

Q. Which bond is the appeal based upon.—A. Both bonds. When Judge Rice got this 
despatch I did not know what had become of the original bond, and supposed it had prob¬ 
ably been destroyed. There was another bond, as I have stated, executed the same day with 
this; but when Judge Busteed claimed that it should be under a different rule, this was made 
out; but the judge refused to sign it. The case is still pending in the Supreme Court. 

By Mr. Eldridge : 

Q. Did you ever have any conversation with Judge Busteed about the §5,000 —A. No, sir; 
I have never had any conversation with Judge Busteed, except as I have stated. 

Q. Did you ever refer to it in any conversation you have had with him.—A. I have never 
had any conversation with the judge since the one I have referred to—in the jeweller’s store. 

Q. Was Jacob Wilson in the room when you had the conversation you have testified to 
with Judge Busteed in regard to the settlement of the matter by paying §5,000.—A. O, yes; 
the parties in the room were Judge Busteed, Jacob Wilson, and myself. 

Q. Do I understand you that Judge Busteed at that time proposed to you to pay the money 
then.—A. No; he did not propose it. Wilson said to me that Judge Busteed would prefer 
the money should be paid then. In the conversation with Judge Busteed, in which I pro¬ 
posed that he should go to Montgomery the next day, Mr. Wilson remarked, “Judge Busteed, 
you must go to Montgomery.” Judge Busteed said, “Jacob, you hush up,” or something 
to that effect. Wilson said, “Judge, you will'go anyhow ; you are in favor of having justice 
done by Mr. Morris.” In this conversation I am free to say that I had no suspicion of any 
bad faith on the part of the judge. I thought in what he did he meant to do right; that he 
was convinced that he had been very hard upon me, and that he was desirous of seeing me 
relieved. 

Q. I understand you to say that when you left the room Wilson followed you.—A. Yes. 
Judge Busteed told me to go and get Colonel Powell, whom I had brought down from Mont¬ 
gomery as my bondsman, because Judge Busteed required that the security should be a per¬ 
son who could take the oath that he had so much unencumbered real estate; and as I went 
out Mr. Wilson followed me. 

By Mr. Wilson : 

Q. Did Wilson have the carrying out of this execution.—A. The marshal did. 

Q. Was the execution in the marshal’s or Wilson’s hand. —A. This was in Mobile ; the 
execution was in Montgomery. As I was proceeding to say, Wilson followed me out, and 
as we got outside of the door Judge Busteed said, “Jacob, I want to see you a moment.” 
Wilson went back into the room, and after a moment’s conversation returned and said the 
judge had called him back to say he thought I had better give him the $5,000, so that when 
he went up he could complete the arrangement with Mr. Smith. I took it as a friendly act 
on his part. 

By Mr. Eldridge: 

Q. Was Judge Busteed within hearing when he made this remark.—A. The door was shut. 
I said to Mr. Wilson I was perfectly willing to trust Judge Busteed in the matter. Judge 
Busteed was not present at this conversation; as I said, the door was closed. 

By Mr. Woodbridge: 

Q. Have you ever had any conversation with Wilson on this subject.—A. I don’t think 
he has ever been in our place since that. For some cause he has very carefully avoided me. 

Q. Have you ever undertaken to make examination as to the person who drew this 
money.—A. I never have. 

Q. Where is Wilson.—A. I do not know anything about him. When Wilson made this 
statement I proposed to go back to the judge’s room; but Mr. Wilson remarked, “No, the 
judge is busy; you had better go and get Colonel Powell.” 

Q. To whom did you pass the checks.—A. 1 wrote the checks in the Battle House, in 
the presence of Mr. J. F. Johnson, and gave them to Mr. Wilson, asking him to tell Judge 
Busteed that they were for the round sum of §5,0U0, and that I would settle the other ex¬ 
penses, whatever they might be, afterwards. Wilson said the judge had made the remark 
that the few hundred and odd dollars could be arranged at any time. 

Q. Did Wilson take any part in the conversation when Judge Busteed was present.—A. 
When Judge Busteed remarked that he thought he could settle the matter with Mr. Smith, 
I said I would be very glad if he would do so, and that it would be right for me to pay the 
judge’s expenses to Montgomery. He said he had somebody to pay his expenses, or some¬ 
thing of that kind. Two or three times, while talking about the payment of expenses, Wil¬ 
son made some remark, and the judge told him to “hush up.” 


7 


Q. Was Wilson present during the whole conversation.—A. He was. The judge sat on 
one side of the table and I on the other, and Wilson was sitting on a chair or stool a little 
way oft’ 

Q. What kind of a room was it you were in.—A. It was the judge’s private chamber, in 
the custom-house, within a short distance of the court-room. 

Q. Is it a very large room.—A. It is long and narrow. 

Q. How far did Wilson sit from you during this conversation.—A. I should say not to 
exceed 10 feet. 

By Mr. Eldkidge : 

Q. Was there any other conversation between Judge Busteed and Mr. Wilson, except 
when Wilson interfered and Judge Busteed told him to hush up.—A. That was the only 
conversation I recollect. When the judge was considering the matter as to whether he 
would go to Montgomery, Wilson said, “Judge, you must go; Mr. Morris is a gentleman, 
and has been badly treated in this case, I think, and you must go to attend to it.” 

Q. Who first proposed a settlement of this matter.—A. Judge Busteed asked the ques¬ 
tion, “Why don’t you and Mr. Smith settle this matter?” 

Q. Did you not make the statement, in the first instance, that you went there for the pur¬ 
pose of settling the matter.—A. If I did, I should have said for the purpose of getting my 
bonds; I had then no idea of compromising the matter. The first idea of settlement came 
from Judge Busteed. 

By Mr. Semple : 

Q. How long did Judge Busteed remain in the town of Montgomery, where the court 
was held at which this decree was rendered against you, after the rendition of the decree.— 
A. I do not remember; not 10 days though, because he was in Mobile before the 10 days 
were up. 

Q. Do you know whether Judge Busteed had Jacob Wilson in his employment, or about 
his person, after you were informed by Mr. Smith that the judge regarded the delivery of 
these checks to Mr. Wilson as an attempt to bribe him.—A. I know nothing but from hear¬ 
say. I have never seen Wilson since. 

Q. If you have auy other tact tending to elucidate the matter upon which you have been 
examined by the committee you will please state it now.—A. I do not think 1 know of any¬ 
thing further. I think I have stated about the whole. 

By Mr. Wilson : 

Q. Did you, at any time, inform Judge Busteed of the delivery of these checks to Jacob 
Wilson.—A. No, sir; I have stated the only conversation I had with Judge Busteed on the 
subject. 

Q. Do you know whether Judge Busteed knew of the fact of your having given the 
checks to Jacob Wilson. — A. Only from hearsay ; Mr. Smith told me so ; at least I inferred 
it from what he said. 

By Mr. Semple: 

Q. During any interview between Judge Busteed and yourself aud James Q. Smith did 
you ever refer to the fact of the delivery of these checks —A. When I said I thought this 
matter was to be settled, Judge Rice shook his head at me. I asked him afterwards what 
was the reason. He said it was better to let it alone now; that Judge Busteed was going to 
Washington, and after he returned the thing could be brought up. 

Q Was Judge Busteed in such a position in the room as to be able to see Mr. Rice at this 
time.—A. I could not say that Judge Busteed saw him ; we were all in the room ; Judge 
Busteed was sitting at the table, and Mr. Smith was sitting at the table; I do not remember 
exactly the location of Mr Rice and myself. 

By Mr. Woodbridge: 

Q. After you paid this money and found the fund had been distributed, why did you never 
undertake to pursue this $5,0U0.—A. Under the advice of my attorney I thought the time 
was not yet; I suggested that matter to him, and Mr. Smith also suggested that I should pursue 
Jacob Wilson ; l was under the impression that Wilson did not have the money; after that, 
there being some difficulty between Judge Rice and Judge Busteed, Judge Chilton came 
into the case as attorney, and nothing was done. 

Cross-examination by Judge Busteed: 

Q. You are a member of a Christian denomination in Montgomery.—A. I am. 

Q. What denomination of Christians do you belong to.—A. The Episcopal church. 

Q. Are you an officer of that church.—A. Yes, sir. 

Q. And were in 1865, 1866, and 1867.—A. I believe I was. 

Q. Do you not know whether you were or not.—A. 1 was. 

Q. Did you at that time regard the bribery of a public officer as a sin.—A. I always have. 

Q. You regarded it at that time as a sin against God as well as a crime against the laws 
of the land.—A. Yes, sir, I did aud do. 


8 


Q. Where did you first meet Judge Busteed when you came down to Mobile the 10th day 
of January, accompanied by Mr. Johnson, the co-defendant of that suit, and by Colonel 
Powell.—A. I saw you at the post office ; I think you were going to get some postage stamps. 

Q. The post office is in the same building in which the courts are held—the custom-house, 
is it not.—A. Yes, sir. 

Q. Did you address Judge Busteed, or did he first address you.—-A. I do not remember. 

Q. Had Judge Busteed any appointment with you at that time.—A. I understood that he 
had; I was on my way to his office. 

Q. From whom did you understand you had an appointment with Judge Busteed on the 
16th day of January, at Mobile. —A. I went up to Judge Busteed’s office before that with 
Wilson, your servant, or deputy marshal; you were not in the room ; I told him I wanted 
to see you, and he came out and told me you would meet me or be at the room at a certain 

hour. 

Q. My question was whether } r ou had an appointment to meet me at that place.—A. Not 
at, the post office, where I met you. 

Q. "When was the appointment made, and for what time.—A. I remarked that I had been 
over to see you before ; I went up there, and Wilson went into the room, came back, and said 
you were engaged—that you would meet me at a certain hour; I,do not remember what 
hour; probably 2 or 3 o’clock; and on my way to carry out that appointment I met you at 
the post office and Avent up. 

Q. Did Wilson say Judge Busteed would meet you on that day at his office—A. I do not 
remember; probably he did at his office. 

Q. Did you bring with you certain papers in the case of the United States against John¬ 
son and Morris, prepared by Mr. Rice, your attorney —A. 1 had a blank bond. 

Q. Did not Judge Busteed complain that you were not a lawyer, and that Mr. Rice should 
not have sent you upon such an errand without being accompanied by an attorney.—A. He 
did. 

Q. Did he not advise you to get some lawyer in Mobile.—A. I think, as I said before, he 
remarked he was sorry I did not have a lawyer there, and that I mentioned perhaps the name 
of a lawyer Mr. Rice had suggested, but saw that it was no use to get a lawyer after Judge 
Busteed had determined he would not give me the bond; you said you were sorry I had not 
a lawyer to explain the reason why you could not grant a stay of execution, and read the 
law which prohibited you from granting that remedy. 

Q. And after that did Judge Busteed tell you that if Mr. Smith did not settle it he Avould 
grant the remedy.—A. l r es, sir. 

Q. You keep books and accounts in Montgomery.—A. I have them kept. 

Q. What books and accounts do you keep ; state them all.—A. I keep a ledger, a cash¬ 
book, a collection register and discount register, and it is really difficult to remember the 
inferior books I keep ; I may mention a register of checks and balance books ; the principal 
books are the cash-cook and the ledger. 

Q. Who was your bookkeeper at the time of this transaction.—A. I think my present book¬ 
keeper, John D. Carter. 

Q. Where does he live.—A. In Montgomery : he is a young man, and I think he boards 
at the Exchange Hotel. 

Q. What entry was made of this payment to Mr. Wilson in any of your books, and which 
of them.—A On my return from Mobile I credited the banks on which the checks Avere 
draAvn Avith the amounts, and charged myself Avith them. 

Q. State to the committee the entries made by you as nearly as you can recollect, and in 
which of the books they Avere made.—A. The entry was made in the cash-book. 

Q. Was it made in no other book.—A. It was carried to the ledger. 

Q. Was it entered in your book in any other Avay than as a cash debit to yourself.—A. It 
Avas entered, I think, as I have stated ; I have neA T er locked at the entry since. 

Q. Did you eA er talk with Jacob Stanwood on this subject.—A. NeA r er, to my recollection, 
until to-day ; I may have dune it; I have no recollection of it if I did. 

Q Did you make any arrangement with him for the hospitable entertainment of Mr. Rice 
when he came doAvn to see him.—A. I have no such recollection, and could not have done 
it, for I did not know Mr. Rice was going until the very day he went. 

Q. When did you first communicate to Mr. Rice the fact that you had made these pay¬ 
ments to Jacob Wilson.—A. Immediately after my return from Mobile. 

Q. Do you recollect the date —A. If jour date is right as the ICth, this was on the 17th. 

Q. Mr. Rice continued to be your attorney until Avhen. —A. He is still my attorney, and 
up to the 4th of June he acted exclusively as my attorney ; since then, in this case, he has 
been associated with Judge Chilton. 

Q. When you paid the Avhole of that amount to Mr. Hardy, the United States marshal, 
why did you not claim a reduction of the $5,000 you had paid to Wilson.—A. 1 remarked 
to him that I had paid that amount. 

Q. Why did you pay the Avhole amount to Mr. Hardy.—A. Because he said he Avould not 
take out this amount of $5,000, and he had advertised my property. 

Q. At that time Jacob Wilson Avas deputy marshal in the employ of Mr. Hardy.—A. I do 
not knoAv ; he was not in Montgomery at the time. 


9 


Q. \ou attended the district court of tbe United States for the middle district of Alabama 
in May and June, J867, did you not, personally.—A. I presume I did. 

Q. Do you not know that you were there.—A I think I was. 

Q. Do you not know that you were examined as a witness in a case.—A. I think it pro¬ 
bable I was : it you will bring the dates home to me, I can answer probably. I do not think 
you have ever held court in that district without my being present as a witness in some case. 

Q. Did you ever make any application to me personally, or judicially, in respect to this 
payment of $5,U00 to Jacob Wilson—A. I never did. 

Q. Did you ever ask your attorney to make application to the court to compel the mar¬ 
shal in collecting $31,689 55 for that execution, to credit you with the $5,000 paid to Jacob 
\\ ilson.—A. No ; Wilson had obtained that before. I did not owe the marshal anything, as 
I believed. I never made any such application. 

Q. I was holding court in Montgomery in May and this payment was in March, you were 
present in court as you have stated ; I ask you again, did you ever instruct your attorney to 
make any such application.—A. No, I never did. 

Q. Did you ever write to me on the subject of this payment.—A. I do not think I ever 
wrote to you on any subject, I never did on this 

Q. Was Jacob Wilson a person who would be allowed to be on terms of intimacy with 
you —A. No, sir. 

Q. Can you understand all that Wilson says to you.—A. When he speaks English I 
can; he speaks pretty good English, and I think I can understand him pretty well. 

Q. Are you in the habit of writing letters commencing My Dear Sir to persons who were 
not tit to be your associates.—A. No, sir. 

Q. Look at the letter now shown you and say if it is in your handwriting.—A. Yes, sir; 
it is in my handwriting. 

The letter referred to is as follows : 

“ Banking-house of Josiah Morris & Co., 

“ Montgomery , Alabama , February 26, 1867. 

“My Dear Sir : I despatched you yesterday to know if you could not come to see me at 
once; it is very important, allot which I will explain when I see you ; the arrangement is 
not being carried out; you said all should be right; come and see me at once ; despatch me 
on receipt of this; I am sorry to trouble you, but matters must be attended to; you can 
arrange it. 

“Respectfully, 

“JOSIAH MORRIS. 

“Jacob Wilson, Esq. 

“ I saw' Mr. Lobeman, who said you had been in Selma but was now in Mobile.” 

Q. What matter did you think Jacob Wilson could arrange that the judge could not 
arrange by application to him.—A. I thought that Wilson had said that you would do what 
he said you had told him you would do, and if you did not do it I wanted my money 
returned. 

Q. Why did you not write Judge Busteed that.—A. Because Judge Busteed had refused 
me the right I had applied for. 

Q. You mean in reference to that appeal,' nothing else.—A. Nothing else. 

Q. He had not refused you any courtesy, or any right, other than that.—A. He had not; 
I had made no other demand. 

Q, What was it from me that Jacob Wilson should come to see you, of which you would 
explain when you saw me.—A. I thought when he came to see you you would do as he said 
you would do ; that is, having failed to make the settlement you would pay me back my money. 

Q. Then why did you not ask me for it or write me for it.—A. I did not do it for the reason, 
probably, that I had heard you said you had never had the money, or had never seen the 
checks, and that Wilson had the money. 

Q. This is the envelope in which you sent that letter to Jacob Wilson.—A. Yes, sir; it is 
addressed, Jacob Wilson, Esq., Mobile, Alabama. 

Q. Is the address in your handwriting.—A. It is. 

Q. And the despatch you sent from Montgomery to which that letter has reference is this, 
(exhibit ng despatch.)—A. I think that is it; I havea copy of it 

Q. And is it directed to Mr. Wilson, in the United States marshal’s office.—A. Yes, sir. 

Q. Have you ever stated to any persons a different version of this affair of Wilson that 
occurred in the judge’s office than that you have now sworn to before this committee.—A. I 
have not, to the best of my knowledge. 

Q. Have you ever stated a different veision of it to John Hardy, of Montgomery, Alabama, 
now in the legislature.—A. I never gave to John Hardy any version of it at all. 

Q. Have you ever stated a different version to N. D. Stanwood.—A. I never did. 

Q. Have you to Jacob Stanwood.—A. I have not: I want, however, to explain one thing. 
I have said in conversation with these parties that I had not the slightest intention ot bribing 
Judge Busteed ; that such a thing never entered into my head, and I say that now injustice 
to him and injustice to myself. 


10 

Q. You still believe Judge Busteed had this $5,000.—A. I believed that Judge Busteed 
had it. 

Q. Did you believe Judge Busteed to be pecuniarily responsible.—A. I do not know any¬ 
thing about it. From such information as I have I think lie is. 

Q. And you say again to the committee that the idea of a bribe never entered into your 
head—A. It did not 

Q. You never attempted that wickedness.—A. No, sir. 

Q. After having this conversation with Judge Bustoed in his office, as you have said, about 
settling this claim for $5,000 and paying this $5,000 to Wilson, why did you not apply to 
Judge Busteed on the subject.—A. I have given the reason that my attorney advised me to 
let it remain. 

Q. Did your attorney in that connection give any reason for that advice; if so, state it.— 
A. I do not remember that he did. My recollection is that my attorney advised me not to 
interfere with any of these matters until the rendition of the decision of the Supreme Court, 
when it might be necessary to take some action to get all the money back. That is my 
recollection of the matter. 

Q. Did you not pay $30,000 to Mr. Screus, of Montgomery, in whose newspaper the mar¬ 
shal had inserted an advertisement under that execution.—A In one sense I did, and in 
another sense I did not. I did not deposit any money with Mr. Screus. The marshal adver¬ 
tised my property and went to Mobile. I did not want the advertisement to remain in the 
paper; I wanted it taken out. It was a matter of annoyance and regret to me, and I went 
to Mr. Screus to see the publisher of the paper. I did not know who to pay the money to 
or how to pay it. The whole thing was premature. I supposed the matter had been set¬ 
tled. Mr. Screus said he could not take the responsibility of taking the advertisement out. 

I then said I would deposit with him $30,000. He told me I might just put it into an envelope 
and place it in my house. I went and drew a certificate of deposit, I think in favor of W. 
W. Screus, and placed it to the credit of John Hardy, United States marshal, for $30,000, 
and he had the advertisement out of the paper. 

Q. Without any direction from the marshal or from the court.—A. Yes, sir. 

Q. When you paid or adjusted the matter in the manner you have stated, and got the 
advertisement of the United States marshal taken out without his authority and without an 
order from the court, taken out from the newspaper in which it was printed, did you speak 
to Mr. Screus anything about the payment of this $5,000 to Wilson.—A. I do not remember 
I did. I want to state one fact in this connection. I gave a certificate of deposit to Mr. 
Screus to secure him. I was willing to give him the $30,000 to be paid to Mr. Hardy when¬ 
ever he came. Mr. Screus did not want to receive it, and the matter w as arranged as I have 
said. When Mr. Hardy came to towm, on the 25th, I w 7 eut to him, taking with me Major 
Semple, and paid 31,000 and some hundred dollars, and Mr. Screus gave me up the receipt 
I had given. 

Q Mr. Semple was then the law r partner of Samuel F. Rice, and continues to be to-day.— 
A. He was, and I have never heard of the dissolution of the partnership. 

Q. Had you ever had any conversation 'with Jacob Wilson on the subject before the time 
you met him in Mobile on the 16th of January. — A. I never had a conversation with Jacob 
Wilson on the subject of this execution before. Mr. Wilson met me once, some time during 
the trial of the case, and remarked to me he thought the matter could be settled if I would 
give $2,000. 

Q. Why did you not state that in your direct examination —A. I did not think of it. 

Q. Where did this conversation with Wilson occur.—A. In Montgomery, some time in 
1860. I do not recollect the date. It was on the first trial of the case, when you gave me a 
jury. There were two trials, and while the first trial was going on Wilson remarked he 
thought the matter could be compromised if I would pay $2,0l)0. 

Q. This was in May, 1866.—A. Yes, I think so. It was at the time of the first trial. 

Q. This occurred in the streets of Montgomery.—A. Yes, on the sidewalk. 

Q. Who was in company with you at the time this conversation took place.—A. No one, 
except Mr. Wilson. 

Q. Had he known you before then —A. He had never known me except in the court-house 
as deputy marshal. 

Q. Were you on terms of intimacy at that time, in 1866.—A. No, sir. 

Q. And yet he approached y r ou and told you this case could be compromised by the pay¬ 
ment of $2,000 to the judge.—A. No, sir; I did not say to the judge; I did not look upon it 
as bribery at all. He said that for $2,000 this case could be compromised. 

Q. What did you answer.—A. I told him I would not do it; that I would not give any¬ 
thing. 

Q. Did you communicate that fact to the district attorney, J. Q. Smith.—A. No, sir; I 
did not. 

Q. Did you communicate to the judge —A. I did not. 

Q. To whom did y T ou communicate, if to anybody. — A. To my attorney, Judge Rice. I 
do not remember that I communicated it to any other person. 

Q. You did not give Mr. Wilson any money.—A. Not a cent. 


11 


Q. Have you ever given Jacob Wilson any other money than that you have stated in 
regard to these checks.—A. Not a dollar. 

Q. Did you not give him the sum of $*25 in Montgomery.—A. Not to my recollection. 

Q. \\ ill you swear that you did not.—A. I will, to the best of my knowledge and belief, 
that I never did. There may have been some subscription or something for a charitable pur¬ 
pose ; I do not recollect. 

Q. Was Wilson the almoner of this charity which you subscribed for.—A. No, sir. 

Q. Who paid Henry C. Semple for going to Washington in July last. Did you pay him 
anything, or have you subscribed or given any money towards his expenses.—A. I think it 
probable that after Mr. Semple came to Washington city some parties, I do not know who, 
said they wanted to make up a sum of money for the purpos eof paying his expenses, not for 
the purpose of paying Mr. Semple for the prosecution of this case. They came to me and 
asked me to give, and my impression is that I gave him $50. 

Q. Was there not a telegram sent by H. C. Semple to Montgomery, from Washington, 
saying that $500 more would be necessary in order to get through.—A. I have no knowledge 
ot that; $500 may have been given. 

Q. Was not $500 raised for that purpose in Montgomery.—A. I do not remember. The 
sum may have been $500 ; I do not recollect. 

Q. You and Colonel Powell, as he is called, are quite intimate.—A. Not particularly so. 

Q. You came on here in company with him.—A. Yes, sir. 

Q. And you are rooming together at Willard’s.—A. We are. 

Q. In company also with Mr. Chilton and Mr. Martin, of Montgomery.—A. Yes, sir. 

Q. Who paid for the tickets from Montgomery here.—A. I paid for mine; I do not know 
anything about the others. 

Q. Is the $50 you gave towards this subscription of $500 for carrying on this prosecution 
the only money you have paid in that connection.—A. I have never given beyond that 
amount, directly or indirectly, any other subscription, nor paid any amount. 

Q. Was that entered in your cash-book to your debit.—A. If it was entered at all it was 
entered as a cash debit to myself. 

Q. You were engaged in the late rebellion against the government of the United States.— 
A. I was not. 

Q. Did you not deal in confederate cotton.—A. I never dealt in confederate cotton unless 
you call buying and selling cotton raised during the rebellion as dealing in confederate cotton. 

Q. Was there not a judgment against you by the courts of the United States of confisca¬ 
tion of cotton claimed to have been used for the purposes of the rebellion.—A. There is. I 
wish to explain that I had no connection with this cotton. Judge Busteed connected me 
with it. Mr. Johnson made me a partner. I never was a partner of his at all, although he 
is a very clever man. At the time the United States forces were approaching Montgomery 
Mr. Johnson removed from his warehouse (he was a warehouseman) 120 bales of cotton; 
how much more or how much less I do not know. I knew nothing of it until I was told 
subsequently, after the United States forces took possession of the city. Their cotton men, 
I suppose, who were following the army, claimed that this was confederate cotton. After 
General Wilson passed through and General Smith took possession of Montgomery, subse¬ 
quent to the time when the rebellion had been crushed out, Mr. Johnson told me that he had 
120 bales of cotton stored at his place; that he had not a dollar in the world, nothing to sup¬ 
port his family. I at the time had no idea that the cotton ever belonged to the confederate 
government. He said if I would furnish the money to support his family I might have half 
the proceeds of the cotton. I never was in the rebel army and never supported the rebellion 
in that sense of the word. I applied for protection for the cotton to the provost marshal 
and lie gave me a card. After awhile Mr. Johnson sold this cotton for between $5,000 and 
$0,000, obtained the money, and paid me back the money I had advanced him. Mr. Johnson 
was entirely irresponsible, was bankrupted, and they connected me with this cotton because I 
had received this amount, paid in this way. 

Q. I think I understood you to say when J. Q. Smith, United States district attorney, con¬ 
versed with you on this subject and you told him of the $5,000 you had paid to Wilson, that 
he, the law officer of the government, offered to credit you with $5,000, but that you said 
you Avould take all or none.—A. No ; I did not say that. I said afterwards in conversation 
with Mr. Smith that I had paid the $31,000; that I understood previously that upon the 
payment of $5,0< 0 the matter would be settled. I did not claim nor intimate any attempt to 
bribe Judge Busteed in that connection, but when I mentioned the circumstances Mr. Smith 
said the matter could be settled ; that the case had not gone'up to the Supreme Court yet, or 
at least had not been tried, and that if my attorney and Judge Bice would come forward 
and move that the pending judgment be set aside and the case opened again, he would con¬ 
sent to the judgment being reduced to $25,000, so that 1 could save the $5,000 I had paid. 

Q. Why did you not do that.—A. Because I was not willing to take my $5,000 and give 
up the $31,000. I would rather go to the Supreme Court and rest upon the result. 

By Mr. Wilson : 

Q. I understood you to say you paid this money under protest.—A. That is the reason 
why the name of Major Semple has been mentioned. He had nothing to do with it. When 


12 


I was going up to pay the amount, my property had been advertised I had failed to see 
Judge Rice, and I asked Mr. Semple to go with me and state what protest was necessary, 
or whether any was necessary. He went with me. I asked him what kind of protest I 
should enter. He told the marshal that the proceedings in this case were illegal, or some¬ 
thing of that kind, and wanted him to remember it. 

Q. Was there any formal protest.—A. No formal protest that I remember. 

By Mr. Semple : 

Q. In relation to the conversation with Mr. Wilson to which you have referred before the 
trial of the first case, in which he spoke of cases being compromised, was it the fact within 
your knowledge that the district attorney marshal was assuming authority to compromise 
cases in court under a consideration.—A. I knew myself that cases were being compro¬ 
mised ; in fact, I was offered a compromise in this case beforehand, but not with Judge Bus- 
teed. This was before it went into court. The offer was made by a party from Mobile. 
After the first trial, a nonsuit, as I understood the term, was obtained with jury. During 
the vacation of court the government dismissed that suit and commenced a new one against 
me, which was tried in December. 

By Judge Busteed : 

Q. When 1 returned to Montgomery after you were in Mobile, about the 36th of January, 
did }’ou not wait and watch on a corner occupied by James Q. Smith as an office, for sev¬ 
eral hours that day.—A. No, sir ; not for several hours. 

Q. Did you wait and watch around this corner for any time. — A. I think it probable. I 
may have gone there and watched two or three times 

Q. You did not get into Mr. Smith’s office that day.—A. If I did, the answer given me 
was that Judge Busteed was not there. 

Q. The corner from which you looked was the residence of Henry C. Semple.—A. Henry 
C. Semple does live there. I did not know it then. 

Q. You saw Judge Alexander (McKinstry) and myself leave and go round to the store 
to Harris & Hoyt.—A. I did not. 

Q. You saw us enter that store together.—A. I did not know the gentleman you were 
there with. 

Q. Do you know Judge McKinstry.—A. I do not; at least I do not recollect him. 

Q. You did follow us into Harris & Hoyt’s store.—A. Yes. 

Q. And you asked me to go over to the other side of the store to talk with you privately. — 
A. I said I believed that we went across to the other side of the store. 

Q. Did you ask me for the interview, or I you.—A. I do not remember which. 

Q. Did I in that conversation refuse to have any communication with you, and remarked 
that you must say what you had to say to me in writing.—A. Not upon this subject cer¬ 
tainly, not upon any matter that I recollect. After I had spoken to you on this subject you said 
you were going to Stamvood’s plantation ; that you would soon be back and would look into 
the matter. I then remarked there was another party who wanted to see you about a settle¬ 
ment, the case upon which the cotton had been sold and the money was in the hands of the 
United Stites, but which had not been tried yet. I was goiug up street, and saw Judge 
Busteed go into the store. I went in and said to him that I was glad to see him back again, 
that I hoped he would have time to attend to this matter. 

Q. Did Judge Busteed say, in that store, “Write to me on any subject you may have and 
I will answer it by letter, but 1 cannot give you an interview.”— A. No, sir ; not the letter 
part. 

Q. A r ou have never given Judge Busteed any mone}’’ for any purpose.—A. Never. 

Q. And the one time you offered to give him the money was to pay his expenses to Mont¬ 
gomery, which he refused to receive.—A. He did. 

Washington, D. C., December 30, 1868. 

James R. Powell sworn and examined. 

By Mr. Semple : 

Question. State to the committee whether you accompanied Mr. Morris to Mobile for the 
purpose of becomiug surety upon a bond; and if, having done so, you went to Judge 
Busteed’s room to execute the bond ; and state what passed while you were there in the 
presence of Judge Busteed.—A. I think it was in January of last year I was on my way 
to my plantation on the \ r azoo, when Mr. Morris requested that I would go by the way of 
Mobile for the purpose of executing the bond required by Judge Busteed in a cotton case. 
I did so ; I stopped at the Battle House; next morning Mr. Morris went over to Judge 
Busteed’s office and made the arrangements necessary for executing the bond with my sig¬ 
nature, so that I could hurry on that evening to Mississippi; I went over with Mr. Morris to 
Judge Busteed’s office, and the bond was executed; I made the qualifications with regard 
to my property and real estate in Montgomery; that is all in reference to the execution of 
the bond that I know of. In regard to the conversation that occurred between Mr. Morris 
and Judge Busteed after that, there was something to this effect: It seemed from the conver¬ 
sation between them that they had had a previous interview that morning, in which it was 


13 


understood that the matter could be arranged, and that the judgment should be reduced to 
some amount—to some $5,000 or $6,000. And the conversation between them after the exe¬ 
cution of the bond was with reference to that point; it seemed that Judge Busteed had agreed 
to go to Montgomery and settle the matter for Mr. Morris. I suggested to the judge that I 
would be very glad if he would settle a case of mine there of some importance; jocularly, 
however. I merely mentioned that because he was aware of my having a pretty hard case of 
a similar sort—a cottou case. 

Q. Was there any reply made to the remark of yours about settling your case.—A. There 
was no response made affirmatively or negatively, as my case had been disposed of, and my 
remark in reference to it was jocular. 

By Mr. Eldridge: 

Q. State all the conversation that occurred there.—A. The substance of it was that Judge 
Busteed said he was going to Montgomery to settle this case of Mr. Morris for which I had 
executed the bond ; that it had been arranged and settled; that he was going up the next 
day; that he had some matters of his own to attend to, and he seemed to be anxious with 
reference to my departure on account of the short time 1 had to meet the Mobile train, which 
I was obliged to take. We took a glass of sherry wine and I departed. The substance of 
the conversation was that Judge Busteed was anxious to attend to his business so as to get 
off to Montgomery to settle Mr. Morris’s business which he had agreed to do. 

Q. Who were present.—A. Mr. J. F. Johnson, Mr. Morris, and a man whom I believe 
they called Jacob Wilson. 

Q. Did Wilson have anything to say.—A. Not before me; no, sir. 

Cross-examination by Judge Busteed: 

Q. Do you reside in Montgomery.—A. Yes, sir. 

Q. You recollect the supper you gave at your house in Montgomery to which you invited 
me.—A. Yes, sir; and I have been very much astonished since I have been in Washington 
that you have not recognized me; the supper was not given to you especially, but to the 
members of the bar. 

Q. Do you still reside in Montgomery.—A. Yes. 

Q. Who is your attorney —A. John A. Elmore. 

Q. What is the name of IStokes, who now edits a daily newspaper in Montgomery.—A. 
John G. Stokes. 

Q. Was he at that time your attorney.—A. No, sir 

Q. Do you know of a telegram having been sent to Montgomery in July of this year by 
Henry C. Sample, from Washington, in respect to funds. — A. No, sir. 

Q. Have you paid anything for this prosecution.—A. No. 

Q. And have not been called upon.—A. No. 

Q. Or agreed to pay anything.—A. No, sir. 

By Mr. Eldridge: 

Q. You have given a general idea of what Judge Busteed said in connection with this 
matter; state precisely what he did say, using his own language as nearly as you can, in 
regard to going up to Montgomery to settle this matter.—A. It is some time since, aud I 
cannot give Judge Busteed’s exact words; but as near as I can recollect there was some¬ 
thing like this : After giving the bond and his qualifying me in reference to my real estate 
in the city of Montgomery, he remarked that it would be all right; that he was going up to 
Montgomery to settle this matter for Mr. Morris, and he had a good deal to do that evening, 
and, said he, you are in a hurry and you had better be getting off, because he knew I had 
but little time to make the connection with the Mobile and Ohio railroad, which road I 
must take that evening; and I took it kindly in him to make the suggestion ; I supposed he 
said as a relief to me (in regard to my obligation on the bond) that the thing had been 
settled. 

Q. Did Mr. Morris leave with you.—A. No, sir; I left Mr. Morris with Judge Busteed. 

Q. Was the oath with reference to your property administered to you by Judge Busteed.— 
A. Yes, sir. 

Q. What was done with the papers.—A. I don’t know; I never heard what was done 
with the bond. 

Q So far as you saw, were they left there.—A. They were left in Judge Busteed’s pos¬ 
session when I left the room. 

Q. Do you remember whether any specific sum was named, or can you state more definitely 
what the sum was.—A. No; I could not speak definitely as to the sum, but the impression 
made on my mind was that it was between five and six thousand dollars. 

Q. You stated that there seemed to have been a previous interview between Mr. Morris 
and Judge Busteed, as I understood you.—A. Yes; from the way in which they talked I 
supposed so. Mr. Morris had been over, as he said, to Judge Busteed’s office for the purpose 
of seeing Judge Busteed with regard to giving the bond. He returned, aud when I went 
over with him I got from their conversation that there was an understanding between them 
in regard to the settlement of this matter in Montgomery, but that the bond had to be exe¬ 
cuted anyhow to meet a contingency which was not expected to arise. 


14 


Q. Have you had any interview with Judge Busteed since that time upon this subject. 

A. No, sir. 

Q. Was the supper at your house since that time, or before.—A. Long before. It was on 
my return from Europe ; I think in November or December, 1866. 

Q. Are you a member of the bar.—A. No, sir, I am not; but the members of the bar there 
are my friends, and I gave them a supper, and Judge Busteed being judge of the district 
court, I invited him. 

Q. When did you first learn the payment of this $5,000 to Jacob Wilson, or did you ever 
learn it.—A. I weut down to my plantation on the Yazoo at the time I left Mobile on the 
16th of January; I did not return to Montgomery for two months, I think, and I then learned 
it in Montgomery. 

Q. You did not know it at the time you speak of, on the 16th of January.—A. No ; I did 
not know it then. - 

Q. Who told you of it. — A. I do not recollect where I first heard it, but I have heard Mr. 
Morris speak of it frequently. I have heard him speak of it, and a half a dozen others speak 
of it, in conversations not addressed to me particularly, that it had been made. 

Q. It was notorious then that this payment had been made to Mr. Wilson.—A. It was. 
understood that it had been made to you. 

Q. Did Mr. Morris say that he had made it to me.—A. He said he had made it to you 
through Mr. Wilson. That was the general impression created by Mr. Morris in all the stories 
I have heard of it. 

Q. Did Mr. Morris convey the impression that it was a corrupt payment or a corrupt 
receipt by the judge.— A. Not at all; but that it was a mere satisfaction of the judgment by 
reducing the amount to what was agreed upon as being satisfactory. 

.Q. Before } r ou came in on the 16th of January to Judge Busteed’s office in Mobile, had 
you had any conversation with Mr. Morris on the subject of settling this claim for $5,000, or 
for any amount.—A. No, sir; I had had no conversation with him on the subject at all. 
All that Mr. Morris wanted was that I should become his surety on the bond. 

Q. I took your examination, reduced it to writing, and you signed it.—A. Yes, sir. 

Washington, D. C., December 31, 1868. 

William P. Chilton sworn and examined. 

By Mr. SAMPLE: 

Question How old are you, and where do you reside.—A. I reside in Montgomery, Alabama. 

I am 58 years of age. 

Q. What is your occupation, and how long have you pursued it.—A. I have had a license 
to practice since I have been 21 years old as an attorney at law and solicitor in chancery. 

Q. Have you been on the bench ; if so, how long and in what capacity.—A. I was on the 
bench of the supreme court of Alabama eight years; for a time associate justice, and a portion 
of the time as chief justice. 

Q. Have you read the charges and specifications against Richard Busteed, United States 
judge of the district courts of the United States in Alabama, made by Henry C. Semple.— 
A. i'es, sir ; I have read them over. 

Q. State to the committee any facts within your knowledge in elucidation of those 
charges.—A. I know nothing in reference to the first specification of the first charge. In 
regard to specification second, I know nothing of any “corrupt agreement with one James 
Q. Smith, unlawfully and uuder color of tees and allowances to be awarded to said Smith by 
his orders, to obtain large sums of money from the people of Alabama and the United States 
with a view of appropriating it to the use of himself, the said Busteed.” I think at probably 
the first court lie held in Alabama, which was, to the best of my recollection, in the fall of 
1865, at which term there was argued the constitutionality of the act of Congress requiring 
an oath to be taken by certain persons, and attorneys among others, before the judge, that 
certain rules were adopted with respect to fees to be allowed the officers of the court. I know 
a large number of libels against various individuals, who, it was supposed, had not been par¬ 
doned by the President, were filed in court. My recollection, though I may be mistaken 
somewhat as to the rates of fees adopted by the judge, is that one per cent, when the amount 
was $2U,00U, which would be $200, was allowed as fees in addition to the regular costs in 
the case as compensation to the officers of the court uuder the statutes of 1861 or 1862, which 
provided that the judges of the court should establish the fees. The matter as to the com¬ 
pensation was mentioned by the judge to the bar at that time: the bar had not been admitted 
to practice, but still the judge solicited any remarks that might be made in reference to it. I 
did not hear of any objection at that time. As I said before, a large number of these libels 
have been brought against citizens of the State; I suppose as many as a thousand for parti¬ 
cipation in the rebellion, and against property for being used in aid of the rebellion. Most 
ot the libels were, I think, against persons for participating in the rebellion who had not 
received pardons from the President. I cannot speak with certainty as to the form of the 
libels; the records of the court will show them. There were two acts of Congress, one 
passed in 1861 and the other in 1862, one of which provides for the seizure and the libelling 
of property which had been seized and which had before been used in aid of the rebellion; 


15 


the other was against individuals who were concerned in the rebellion. I was employed to 
defend a good many of these libel cases, and they were generally settled. I do not know 
that there was one of the proceedings in personal cases that ever came to trial; the parties 
generally succeeded in getting pardons from the President, and, under the rulings of Judge 
Busteed, they came into court, plead guilty, exhibited a pardon, and judgment was rendered 
against them for the costs ; some of the cases are yet on the docket and untried. 

By Mr Eldridge : 

Q. Did you know anything of the judge having anything to do with the receipt of these 
funds.—A. I do not know anything of that kind. 

Q. Do you know of his obtaining any portion of the money in any way whatever.—A. I 
do not: that is about all I know with respect to the second specification, except that I might 
further state that in some of these cases, where libels against property have been filed, my 
clients occasionally settled with the district attorney, or rather, I do not know whether he 
settled with them or not, but their cases were settled in some way to the satisfaction of the 
district attorney, and the client would inform me, and the cases would go oft' the docket; 
that was the fact in two or three cases, I now recollect; and in cases, too, where I was well 
assured the property would not have been condemned, and in which my clients acted in 
opposition to my advice. 

By Mr. Semple : 

Q. Do you know whether, in any of these settlements made by your clients out of court 
by the district attorney, where the cases afterwards went off the docket, anything more was 
paid than the costs of the court. — A. I do not know of my own knowledge, and can only 
state what my clients said to me of the payment to the district attorney and informer. 

By Judge Busteed: 

Q. Did your client ever say anything was ever paid to me —A. No, sir. 

Q. No client ycu had in these cases has ever referred to me in connection with them, except 
as to my conduct on the bench.—A. They would say this, that cotton seized was generally 
condemned, and they were afraid their cotton would be condemned, and thought it more 
prudent to settle their case. The client wdio said that was a man by the name of Thomas, 
who lived up in Coosa; I believe he was the only man I ever knew make that remark; he 
was a very clever old gentleman, and timid; possibly others may have said the same sub¬ 
stantially, but I do not now remember it. , 

By Mr. Eldridge: 

Q. Did you ever settle any of these cases yourself personally.—A. No, sir, except that I 
once paid the $'200 cost, in one case against Jabez L. M. Curry. 

Q. Did you in settling that include any of the fees established by the judge.—A. Yes, sir, 
the $200 fee; that was for property valued at more than $20,000. He had obtained his par¬ 
don and commenced preaching; and this was a contribution made by witness. 

Q. Where was this court held at the time the bar was consulted.—A. It was held in Mont¬ 
gomery, in the middle district, the place of my residence. 

Q. That was before these fees were established.—A. I do not recollect whether the bar 
was consulted before the fees were established or not; I think the fees were announced by 
the judge from the bench, and my recollection is that he invited suggestions in reference to 
the fee bill which he had determined upon from the bar; I do not know that the bar was 
consulted before ; I was not, so far as I remember. Up to that time 1 was barely acquainted 
with Judge Busteed. 

Q. State whether, at the time that announcement was made, the judge had determined to 
admit those you speak of as members of the bar to practice in that court —A. The judge did 
then announce the determination, but I think stated that this should be no objection to the 
bar speaking upon the subject. 

Q. Do you remember whether the judge, in making the statement from the bench to which 
you have referred, cited any precedent for such a lee bill.—A. I do not remember ; he 
may have done so. 

Q. Were these suits, which you say were settled on the authority of the district attorney 
and informer, with the consent of the court.—A. It would generally be arranged at the court, 
and the district attorney, after settling them, would announce to the court that the ca-.es 
were arranged, and asked to take an order in them such as he desired, so as to relieve the 
party from any further interference, and the court would allow the order generally as asked 
by the district attorney. So-far as my clients were concerned I would have that done, for 
the reason that it was necessary for their protection. 

Q. In these cases you were present in court assenting.—A. Yes, sir, ordinarily. 

By Judge Busteed: 

Q. And were a full attendance of the bar assenting so far as you know.—A. I heard no 
objections to orders of this kind where the parties consented to settle their cases. 

In regard to the third specification, in reference to the suit on the part of the United States 
against Morris & Johnson, I know nothing of the case except the fact that it was pending, 


16 


and that there were two suits, I think ; the first was in the nature of trover combined with 
assumpsit. An objection was taken by Judge Rice, who, I think, was at tliat time the ac¬ 
tive counsel for the complainant, upon the ground that it united two distinct forms of action, 
trover and assumpsit; that was argued before the court. Not having been engaged in the 
case I may not be as accurate as I would desire Something was said about a non-suit, and 
I think Judge Busteed suggested that the proper practice would be to withdraw a juror and 
let it be a mis-trial, and I think that course was pursued. The suit at any rate was dis¬ 
missed, and a new action brought. I suppose the new action is the one referred to here. I 
was not enggged as counsel on [in] that case at the time. Some time after I was employed to 
bring the case to the Supreme Court of the United States, and to obtain a bill of exceptions 
from Judge Busteed. 1 applied to the judge for a bill of exceptions, and he granted it. 
Judge Rice, before I was concerned in the case, had taken an appeal on the case to the Su¬ 
preme Court, but as he did not practice here I* was employed. The judgment of condemna¬ 
tion in that suit was rendered in [at] the fall term of 1866, if I mistake not. A motion was 
made in June at [after] the May term of 1867, for the distribution of the proceeds which had 
been recovered from Mr. Morris, amounting to some $30,000 or $31,000. Judge Rice had 
instituted a suit against Judge Busteed shortly before that, and I think immediately upon 
the adjournment of this court, and Judge Busteed had notified Judge Rice prior to that time 
that he would not order the distribution of this money collected from Mr. Morris, inasmuch 
as an appeal had been taken to the Supreme Court, until after the case was decided in the 
Supreme Court. I have not the letter here to which 1 refer, and which I think is in Judge 
Busteed’s handwriting. The letter I spoke of was addressed to Judge Rice. The purport 
of the letter was that Mr. Rice had before been informed that he would not make a distribu¬ 
tion in that case [lest it might go into irresponsible hands, but would wait] until the Supreme 
Court had decided the question, but that [Mr. Smith, the district attorney, and] the informer 
[had] insisted that Judge Busteed had no right to keep [withhold distribution of] the amount 
of his share of the proceeds which had been collected, and Judge Busteed desired Judge 
Rice to come into court and show cause the next day why an order should not be made. I 
think the time fixed was 10 o’clock. Mr. Morris came to me, we went into the court-room 
and found Judge Busteed there. This was done in vacation of court at chambers, but in the 
court-room. The motion was called up by Mr. Smith, who had then ceased to be district 
attorney. I appeared for Mr Morris. I recollect Judge Busteed asking me who I repre¬ 
sented. I told him I represented Mr. Morris, who was there. I objected to going into the 
case upon several grounds, which will be shown by reference to the bill of exceptions. 

By Mr. Smith [Semple] : 

Q. Have you that record with you.—A. No, sir; I have the record here of the original 
case but no record of the proceedings upon the order for distribution. I insisted that the 
court had adjourned and that the judge at chambers could not order a distribution ; 1 insisted 
further that no informer had appeared upon record, (Judge Busteed here read the letter 
referred to directed to Mr. Rice, notifying him to show cause why an order for distribution 
should not be made, and also his notes upon that proceeding.) The amounts [accounts,] as 
far as stated by Juda’e Busteed’s notes, are correct. I remember insisting that the district 
attorney should be present to represent the United States and that the United States had no 
representative there; to which, as my memory serves me, the judge remarked, “I will see 
the United States taken care of.” I got a bill of exceptions in the case on [of] the distribution 
of the funds. I was notified on last Saturday evening to attend here, and had no opportu¬ 
nity to obtain the record in this case. I have here a printed copy of the record filed in the 
supreme court, which I obtained in order to make out my brief, and looking over that, I 
find an order of distribution. This record purports to be signed by Judge Busteed. The 
order appears to have been made the 29th of December, 1866; 1 know nothing of that 
order at all. 

By Mr. E ldridge : 

Q. What was the date of the argument upon the motion for distribution.—A. The 4th of 
June, 1866. This purports to be a part of tne record sent to the supreme court. 

Q. Does it contain the bill of exceptions.—A. It contains the proceedings in the original 
case, and this order of distribution is superadded. 

By Judge Busteed : 

Q. Who put it there —A. The clerk in making out the record. 

Q. Under whose instructions.—A. I am not sure whether under mine or not; I think the 
original case was taken up before I was employed in it. 

Q. Then you had nothing to do with this order appearing here.—A. I think not; the 
clerk can tell. I am not sure that I did not give the instructions. When I saw the record 
I was under the apprehension perhaps that Judge Busteed might have made the decree and 
suspended its operation. I could not well conceive of such a decree being ma le on the 29th 
of December, 1866, while a notice was given for argument to be made on the motion for an 
order for distribution on the 4th of June, 1867. 


17 


By Mr. Eldridge : 

Q. In point of fact, have you any knowledge of this distribution having actually been 
made about the ‘29th December, 1866.—A. None in the world. I had no idea of any such 
f thing at the time I opposed such order, in June, 1867. It may have been made. What I 
U state is, without any very distinct recollection of the fact, that I was under the impression 
at one time that the whole record should be brought up—the record of distribution as well as 
the record of the case ; that it [they] should all constitute parts of the same record of proceed¬ 
ings, and that any error in reference to the distribution could be revised as well as errors in 
the case; but upon further consideration I became satisfied that they were two cases and 
must be brought separately. It may have been under this first impression that I gave to the 
clerk direction to make out the record of the distribution, but had not the slightest knowl¬ 
edge of any such order having been made before this proceeding on the 4th of June. I have 
nothing more to say in regard to that specification, except that when I applied to Judge Bus- 
teed for a bill of exceptions in this case for distribution, he very promptly gave it to me, 
and gave me a fair one. I do not know whether the order of distr.bution has been entered 
on record in the court or not; I suppose it has. 

Q. Do you know whether any order of distribution was made subsequent to the 4th of 
June, 1867.—A. Nothing more than that I understood after the time of the trial of the motion, 
that the order could be made for distribution. 

Q. Did not the court take time for making the order or reserve its decision.—A. Yes, sir; 

I think so. 

Q. Do you know whether the order for distribution was made afterwards.—A. I under¬ 
stand so. I have no recollection of seeing the record. I sent up to the clerk’s office to find 
the record, but the person I sent did not find it. 

By Judge Busteed : 

Q. Before I went to Alabama to exercise the office of district judge, was not the practice 
very common of lawyers taking original papers from the files of the court to their own offices 
and bringing ti e n back again after having used them.—A. I have known it done sometimes. 

I have known execution dockets to be taken out, but not the minutes of the court. It was 
the former custom in Alabama for plaintiff’s attorney to get from the clerk’s office the original 
writ before filing the declaration, but since the code under which the summons and complaint 
are both required to be issued together and both served upon the defendant, the plaintiff's 
attorney generally goes to the clerk’s office and takes the summons and complaint, puts 
them all together and makes his preparation, giving the clerk a receipt for them ; that is the 
usual practice in the State courts. 

Q. Do you not know that I made an order prohibiting the continuation of that practice in 
the district court for the middle district.—A. I do not know whether you made any order. I 
know that you gave verbal orders that it should not be done. 

Q. Do you not know that I had frequent occasion to complain from the bench of the 
absence of papers. — A. I recollect of hearing you when in Mobile giving a pretty severe 
rebuke to the clerk of the court there for allowing a missing paper to be taken away. Under 
your administration origiual papers were not often taken out. You required them to have 
copies of papers made. 

By Mr. Eldridge: 

Q. Do you know anything about the $5,000 spoken of in that specification.—A. Nothing 
of my own knowledge. \ 

By Judge Busteed: 

Q. Do you recollect an interview you had with me in December, 1867, in Mobile.—A I 
am not certain as to the time. I had an interview with you on the subject of these bills 
of exceptions in which you alluded to that subject. 

Q. Do you recollect coming over to me at my office and saying that you had spent a sleep¬ 
less night on account of what had occufred between you and me the day before.—A. I 
recollect telling you I had been troubled by the statement you made in respect to your son 
with reference to the charges involved in the suits agaiust you. It had worked upon my 
sympathies very much. In that conversation reference was made to the suit brought against 
you by Kice, Semple & Goldthwaite, by Elmore, Keys & Morrisett, and by Captain Elmore 
individually. 

Q. In which I was charged with bribery and corruption.—A. Yes; I learned these were 
suits in which bribery and corruption were charged. I never saw the docket. 

Q. Were not the charges printed in the Montgomery Mail.—A. I think either the charges 
themselves, or some statement of them, was. 

Q. And it was after that publication that you came down to see me at Mobile. A.—Yes, sir. 

Q. Do you recollect that when you called on me you said you wanted to talk with me for 
two hours without being interrupted once, and that my reply was that I would be glad to 
talk with you all day if you desired.—A. I think some conversation of that sort occurred. 

Q. During that conversation did I not complain of the treatment I had received from Kice, 
Semple &- Goldthwaite, and from Elmore, Keys & Morrisett and other attorneys in Alabama. 

(Question objected to by Mr. Semple as irrelevant, and objection sustained.) 

2 B 



18 


Q. In that conversation did I not tell you of this transaction with Josiah Morris and Jacob 
Wilson. 

(Question objected to by Mr. Semple.) 

Q. Did I not further tell you that my opinion was that Josiah Morris was a bad man, and 
had endeavored to bribe me to make a decree in favor of giving him a subsidius, and was * 
not this in November, 1607. 

(Question objected to by Mr. Semple. Objection not sustained by the committee.) 

A. I had a conversation with Judge Busteed in the custom-house, after I had arrived at 
Mobile, in the judge’s room, in 1607, and in December of that year, as well as I recollect. 

I had gone down for the purpose of getting Judge Busteed to sign some bills of exceptions, 
and one of these, in the case of Morris & Johnson, and another in the case of 155 bags of 
cotton which had been condemned, and in which Mr. Morris was the claimant, for the Bank 
of Louisiana. Captain Elmore, and the firm, of Elmore, Keys & Morrisett, as I understood, 
and Judge Rice, of the firm of Rice, Semple, & Goldthwaite, had brought suit against 
Judge Busteed. I think he was charged, with Rufus Andrews and Mr. Mott, with a corrupt 
and unlawful combination to defraud these lawyers of their fees. The suit was then pend¬ 
ing in the circuit court. I went in to see Judge Busteed, and while there we got into con¬ 
versation—probably he commenced it with me—in regard to things that had transpired. I 
have not a very distinct recollection of the conversation. I think I remember using the 
expression which the judge states, that I would like to have two hours’ conversation by our 
selves. He told me then of his complaints against several members of the bar, “ that they 
had not treated him with courtesy,” aud spoke in pretty rough terms of some of them. I 
cannot now repeat the language used, for I do not try to retaiu these rash things against my 
biethren of the bar, or against the judge himself. He also alluded to the matter of this 
suit, and told me about his son, and how he would feel, seeing such charges against his 
father. This was after he was shot and badly wounded ; and stated that that did not create the 
same poignancy with him as these suits for corruption being heralded to the world for the pur¬ 
pose of degrading him. He then told me about Mr. Morris ; that “ Mr. Morris had attempted 
to bribe him that he “had put [paid] in checks to Jacob Wilson some $5,000.” I had heard 
an account of the same transaction previously from Mr. Morris, and as his client I had the pru¬ 
dence not to repeat what Mr. Morris had said to me of Judge Busteed, nor what Judge Busteed 
said to me of Mr. Morris ; but my sympathies were very consideraably excited. I thought very 
much upon it that night, and, as I told the judge, it kept me pretty much awake. I asked 
his permission to allow me to intervene in the matter, saying that I would do nothing to 
compromit his honor; that I was under the impression these suits had been brought hastily, 
under the sting of defeat, which often excites attorneys, and that upon my return home I 
would see whether these attorneys could not be induoed to drop the matter. Upon my 
return home J did get them (Rice and Elmore) together, and told them I thought they ought 
to dismiss their suits against Judge Busteed. I did not tell them that the judge had com¬ 
missioned me to do this; but I volunteered myself to be a peacemaker in the matter, and to 
try to accommodate it. I induced them to dismiss the suits against the judge, and I wrote 
to him afterwards what I had done. 

Q. In this interview did you first commence the conversation on the subject of the $5,000 
paid to Jacob Wilson.—A. No ; I carefully avoided any allusion to the swbject. 

Q. Had you any conversation with Judge Busteed on that subject prior to that.—A. No, 
sir ; not a word. 

Q. State all the judge said to you about that $5,000.—A. My recollection is not very 
distinct as to whether the judge went into the details of it or not. The difficulty in my 
mind exists in distinguishing between what Mr. Morris told me and what the judge told me. 

I recollect the judge said that Mr. Morris had attempted to bribe him through Jacob Wilson 
aud had paid Mr. Wilson $5,000 in checks upon a bank. He spoke of it with a good deal 
of feeling apparently. 

By Judge Busteed : ( 

Q. Did I not in the same conversation also allude to an attempt to cheat me at cards at 
Mr. Powell’s house, where several lawyers were present.—A. Yes, sir. 

Q. I told you what was told me by Mr. Stokes.—A. Yes, you mentioned Mr. Stokes’s 
name and that marked cards were to be played with the intention to swindle you. You 
gave me that intormation as coming from Mr. Stokes. I confess that I was loath to believe 
the statement, and that I thought your author was under a misapprehension in stating his 
tacts, and, I think, so informed you. 

Q. Was Mr. Morris a claimant in the case of the Bank of Louisiana.—A. Yes, sir; as a 
party who had replevied the cotton. 

Q. What was the amount involved in that suit.—A. There were two suits of the United 
States against the Bank of Louisiana—one for 192 bales of cotton, and the other for 155 
bags or bales of cotton, the records of both of which I have here now. 

By Mr. Eldridge : 

Q. How did the judge say that Mr. Morris had attempted to bribe him with this $5,000 ; 
how did he say the bribe was attempted to be used.—A. I do not think he went into detail 


19 


as to what Mr. Morris ■wanted to do; if he did it has escaped my recollection. I understood 
him that it had reference to the case of Johnson and Morris, which had been decided. 

Q. Did Judge Busteed tell you what had become of that money.—A. I do not think he 
did. The impression was left upon my mind that Jacob Wilson had it, but whether from 
what Judge Busteed told me, or from the remarks made by Mr. Morris, I am not prepared 
to say. 

Q. Who is this Jacob Wilson.—A. Jacob Wilson, from his brogue, I should take to be a 
foreigner; I do not know what countryman he is. He was with Judge Busteed when [ 
first saw the judge, I think, aud afterwards, on some occasions, acted as deputy marshal, as 
I was informed. 

By Mr. Wooduridge : 

Q. What were the apparent relations between Jacob Wilson and Judge Busteed.—A. 
When I saw him he seemed to be acting in the judge’s employment more as a servant or 
page. The judge spoke to me of him as being a very faithful fellow, and spoke of his being 
under obligations of gratitude to him for something ; I do not recollect what. 

Q. Was Wilson both at Montgomery and Mobile with the judge.—A. He was with him 
at Montgomery and was, if I recollect aright, at Mobile at the time of the interview I speak 
of with Judge Busteed. I think I saw him in his office. 

Q. Do you know of his acting in any other capacity than as servant; whether as clerk, 
or otherwise.—A. I do not think he acted as clerk. I have seen him perform services for the 
judge; he seemed to be at his call. I have never seen him sell things at auction ; I think be 
sometimes acted as auctioneer in his capacity as deputy marshal. When the judge held 
court at Montgomery he would frequently stand at the door, seemingly to keep intruders out, 
aud afterwards I would see him at the judge’s room, apparently waiting on him ; when I 
saw him at Mobile he appeared to be about the judge’s room. 

Q. Did Wilson have any place of residence.—A. I do not know. I understood from 
Judge Busteed, whether intended seriously or jocularly I do not know, that Wilson’s wife 
lived north, but that she was coming down to Mobile, probably, the last term of court. 

Q. How old a man was he.—A. I should judge from appearance that he was about 35 
years old. 

Q. Where does he reside now.—A. I do not know; the last I saw of him was in New 
York when I was there in July last. 

Q. Was Wilson present at the time Judge Busteed said Mr. Morris attempted to bribe 
him, and had paid money to Wilson.—A. No; I think no one was present except Judge 
Busteed and myself. I think we were having a private conversation between ourselves. 

Q. Had he been there before you commenced your conversation.—A. Yes; I think I saw 
him there at that time. 

Q. Why did he not remain in the room during your conversation.—A. It may have been 
from the fact that I told Judge Busteed I desired a private conversation between him and 
myself. • 

Q. Have you a distinct recollection about that.—A. No; I have no recollection of Jacob 
being excluded at all, but I think he was not present during the time we had our conversation, 
and my best recollection is that he was there before the conversation commenced, and was 
there afterwards. 

By Mr. Semple : 

Q. You say the last time you saw Jacob Wilson was in New York. When was that.— 
A. In July last, at the time of the democratic convention to nominate candidates for Presi¬ 
dent and Vice-President; I met him on the sidewalk in Broadway and spoke to him, or he 
spoke to me; I asked him where Judge Busteed was. 

Q. Do you know where Jacob Wilson is now.—A. I do not; I did hear he was in this 
city ; I do not know how true it is. When Judge Busteed went into the room with me to 
look over and sign bill of exception in the case or 192 bales of cotton I think General Stan- 
wood and Judge Busteed and myself were in the room, and that I saw Wilson there; that 
was in July last. 

Q. As to your conversation with Judge Busteed in Mobile, I wish you would state to the 
committee whether he said anything about the action he had taken which was the occasion 
of this suit by Elmore, Keys, and Morrisett, or any action which he expected to take here¬ 
after.— x. I cannot pretend to detail the conversation which occurred with accuracy, for the 
reason that it was entirely between ourselves and of a confidential nature, such as did not 
impress itself upon my memory as likely to be called up again. I know Judge Busteed 
considered himself greatly aggrieved; said what he had done in the matter of the distri¬ 
bution of the mouey was done in the best faith; he called my attention to the fact ot my 
connection with this allowance of fees. Judge Busteed had called me up and appointed me 
receiver of $10,000 in gold and a note which was with the gold. I confess to some 
reluctance in accepting the appointment, but I, as I ordinarily do, obeyed the request ot the 
judge. While the case was in progress I went down after the gold to a banker’s in the city, 
got it, and brought it up into court; just as I got into court with the gold I think General 
Morgan, on the side of Rice aud Elmore, proposed to call me as a witness. Judge Busteed 


20 


remarked that tlie examination had been prolonged far enough, and General Morgan did not 
insist upon examining me. It was ordered that I pay Mr. Mott $7,000 in gold, and I went 
into a room back of the court to count it. I think $300 in gold was ordered to be paid to Mr. 
Elmore, and $200 in gold to Mr. Rice. A messenger came to me twice while 1 was counting 
out the money and said Judge Busteed desired to see me in his room down stairs. As soon 
as I was done counting I went down and found Judge Busteed, Mr. Morgan, and, I think, 
Mr. Andrews in the back room. Mr. Morgan was stating to the judge that he thought the 
allowance to these attorneys was altogether insufficient. The judge said he did not think so, 
and, I think, called on me to know what I thought about it. I agreed with Mr. Morgan 
that the allowance was insufficient, but did not state any sum. The judge then ordered that 
the amount should be enlarged, and put Elmore’s fee at $500, I think ; that of Mr. Rice at 
$300 in gold. They refused to accept the money, and after that brought the suits I have 
spoken of. I think in the conversation I had with the judge at Mobile that he referred to 
these matters, and protested his innocence in regard to them, and insisted that the suits were 
malicious and unfounded, using some little invective against the parties who had sued him— 
more against Judge Rice than Captain Elmore. He did not state to me what he intended to 
do, so far as I now recollect, in respect to the matter. I do not remember that he said any¬ 
thing to me in the way of suggestion that I should do anything with the lawyers on the 
subject. 

Q. Do you know whether any record was made of the orders by Judge Busteed in rela¬ 
tion to the payment of the money paid you as the receiver, or the distribution of any part of 
it to Mr. Mott; I mean before the adjournment of the court.—A. I do not. I have never 
examined the records of Judge Busteed’s court. I did not know then that any entry was 
made of the order, and I do not remember seeing any written orders upon the subject of 
record in the court. I do not know anything about the record. The minute records were 
not read in open court as is usual in our State courts and as was usual in the United States 
courts in Alabama before Judge Busteed’s time. I did see the order in Judge Busteed’s 
private record-book. 

Q. You spoke of Mr. Morris as being a claimant or agent of the Bank of Louisiana in one 
case; what interest did Mr. Morris have in that suit, or did he have any.—A. The Bank of 
Louisiana had bought a large amount of cotton through Mr. Steever—I think 740 odd bales. 
E. H. Wilson, who resided in Louisiana, came out early in 1865 and sued out an attach¬ 
ment against the Bank of Louisiana for a laige sum of money. The records of that suit are 
here in the city, if the committee desire them. The cotton was seized by bailiffs appointed 
by a magistrate, under the order of General Smith. The civil authorities had not been re¬ 
established then in Alabama. Under the law of Alabama, when an attachment is sued out 
against a non-resident of the State, and nobody comes in to replevin the property, a stranger 
may come in and replevin it by giving bond in double the amount claimed. Mr. Morris in 
this case came in and gave that bond, the substantial condition of which was to return the 
cotton if defendant failed within 30 days after the judgment of the court. Mr. Morris 
replevined the cotton in this way, but the United States, through the authorities of the 
Treasury Department, caused it to be seized by Mr. Dillon. I was employed to represent 
the parties in interest through Mr. Morris, and we had a formidable controversy before the 
Treasury Department, in the course of which the Secretary of the Treasury, I think, 
obtained the opinion of the Solicitor of the Treasury, and a correspondence took place 
between Mr. McCulloch and the agent—I think Mr. Buckley—who was chief superintendent 
for the district of Nashville, of which our State constituted a part. After that struggle had 
gone on for some time an order was issued to deliver up the cotton to the Bank of Louisiana 
upon condition that the bank would sign an instrument certifying that the United States 
had probable cause of seizure ; and on paying the expenses incident to the seizure, which 
was done some time afterwards, or perhaps pending these negotiations, the cotton was 
libelled in the district court, and the cotton was afterwards condemned. 

Q. Have you the record in the case of the 155 bales of cotton.—A. I have. It is the case 
with the Bank of Louisiana by Mr. Morris, agent, vs. The United States. The bill of ex¬ 
ceptions in this case contains reference to the controversies had before the department. 

Q. You say you were sent for by the judge, and that Morgan, Andrews, the judge, and 
yourself being present, he made an order increasing the allowance to the attorneys named; 
where was that.—A. It was in a room back of the United States court, occupied by James 
Q. Smith. When I say he made an order 1 mean he stated what he would do, and he prob¬ 
ably made the order. I did not see it then. 

Q. Was that before or after the adjournment of the court for the day.—A. The court was 
not in session; it was in vacation. 

By Mr. Eldridge : 

Q. Do you know the fact that this Wilson was employed by the judge after the judge told 
you that $5,000 had been paid to him by Mr. Morris in the same confidential relations as 
before.—A. I saw Wilson wait on the judge after that time, I think, in the same manner 
as before, so far as I know; if there was any difference I did not observe it. 

By Judge Busteed : 

Q. When did you perceive this.—A. In Mobile, when I was there the last time, which was 
in May, I think, 1868, the last court you held there. I saw Wilson there at court. 


21 


Q. You saw him waiting cn him.—A. You had a negro man at jour door. I saw Jacob 
Wilson about the room. I do not desire to say that he was engaged in any particular ser¬ 
vice. I saw him about there. It did not occur to me that there was any change in the rela¬ 
tions. 

Q. Do you recollect the name of the negro man.—A.—Yes ; Frank. 

Q. l T ou have seen him at my house at Jamaica, Long Island.—A. Yes, sir. 

By Mr. Woodbridge: 

Q. Was Wilson in the judge’s private room, or did you see him about the court, in May, 
1868.—A. I am not sure that iu May, 1868, I saw Wilson in the judge’s private room. My 
impression is that I did, but not as a menial ; his negro boy, Frank, was generally at his 
door and waiting on him. 

Q. Was that the first time you have seen Frank there.—A. It was. 

. By Mr. Semple : 

Q. Then afterwards in New York, iu July, 1863, you saw Wilson again.—A. Yes. But 
I did not see him with the judge in July, 1863, except at the time I refer to, when we were 
looking over the bill of exceptions. He came into the room while we were sitting there; 
Mr. Stanwood came in, and I think somebody else. 

Q. The order of distribution mentioned iu that record as having been made on the 29th of 
December, 1866, you will please read.—A. It is as follows : 

“District Court of the United States for the middle district of Alabama, November term, 

1866. 

“ Order of distribution. 

“ United States America ' i 

vs. > 

“ 120 bales of cotton, Josiah Morris, and John F. Johnson. ) 

“ In this proceeding a decree of condemnation having heretofore been rendered against 
120 bales of cotton, and a judgment for the value thereof, namely, $60,000, against Josiah 
Morris and John F. Johnson, and execution to be issued thereon, it is now ordered as fol¬ 
lows : 

“ 1st. That five per cent, of the amount of said judgment, when collected, be paid over 
to the United States district attorney, J. Q. Smith, as a reasonable fee for his services in the 
prosecution of these proceedings. 

“ 2d. That one per cent, of the amount of said judgment, when collected, be paid over to 
the United States marshal, John Hardy, as a reasonable fee for his services rendered iu 
these proceedings. 

“3d. That oue per cent, of the amount of said judgment, when collected, be paid over to 
the United States clerk, E. C. V. Blake, as a reasonable fee for his services rendered in 
these proceedings. 

“ 4th. That after all the costs, charges, and disbursements legally incurred herein are 
deducted from the amount of said judgment, one-half of the remainder to be paid over to 
E. K. McCroskey, who has heretofore lodged an information with the district attorney of 
the United States, which information is to be filed in the clerk’s office herewith ; the other 
one-half to be held in the registry of the court, subject to the order of the Secretary of the 
United States, as provided by law. 

“5th. The clerk will take and file receipts under this order, with the papers in these pro¬ 
ceedings, and this order. 

“RICHARD BUSTEED, Judge. 

“December 29, 1866.” 

Q. Have you a copy of the order made after the arguments on the 4th of June, 1867, upon 
the question of distribution.—A. Not unless this is the order; in which case it must have 
been misstated. 

By Mr. Wilson : 

Q. Have you any knowledge as to whether there is a mistake in the date of that order as 
it appears on the record.—A. I have no knowledge on that subject. On the evening of my 
starting for Washington under your subpoena I picked up this record and desired to have a 
copy of the order of distribution made after the argument, to which I have referred, on the 
4th of June. I had no idea of the existence of any order of this date. This order appears 
to have been made before the money was collected. On the 4th of June the money had 
been collected. This order speaks of the amount of the judgment when collected. The 
date of the judgment I think was probably on the 12th of December, and had not been col¬ 
lected at the time this paper bears date. After 1 was required to come on here I had not 
time to go up and compare this with any made on or after the 4th of June, 1867. 

Q. Do you know this man McCroskey.—A. Yes, sir. He resides at Knoxville, Tennessee. 
He is the person mentioned in this order as informer. I do not know personally that he 
resides there now, but I am so informed. 

Q. Was he present at the time this order was made in his favor.—A. I think he was not 
present in the court; he may have been in the city. 


22 


Q. Who represented him.—A. James Q. Smith, the late district attorney. 

Q. Where does he (Smith) reside.—A. He resided in Montgomery, and it was just above 
his office in the court-room that the matter was discussed. 

Q. Who is James Q. Smith.—A. He was district attorney, and formerlyresided in Selma, 
Alabama. I think he is an Irishman by birth, but he has lived in Alabama for some time. 
He is now judge of one of the circuit courts in that State, having been elected to that office. 

Q. Do you know of any confidential relations between him and Judge Busteed at that 
time, other than that of district attorney and judge of the court.—A. Judge Busteed, when 
he came to court in Montgomery, had his room sometimes in the back part of Mr. Smith’s 
office. I know of no peculiar confidential relations betwen them other than such as might 
exist between the judge of the court and the accredited officer of the government. They 
were very friendly, however; they associated on good terms, and were frequently together. 

Q. Do you mean they associated together nut of court.—A. I do not know that.they did 
more than as other friends who would associate. I recollect nothing very marked in that 
respect. Mr. Smith and myself were never very cordial, and I do not know a great deal in 
regard to his relations with the judge. I take it more for granted than otherwise that they 
were on friendly relations, from the fact that the judge would occupy a back room in his 
office. 

By Judge Busteed : 

Q. Was the judge provided with any chambers in Montgomery.—A. No, sir. 

By Mr. Semple : 

Q. Upon the subject on which one of the committee has examined you, I will ask if you 
do not know that the judge slept in J. Q. Smith’s room while he was district attorney, and 
that when you had occasion to visit him, except when engaged in court, you had to visit 
him there, aud that that relation continued even after Mr. Smith’s removal from office as 
district attorney.—A. I think the judge generally slept in the back room in Mr. Smith’s 
office, after the judge’s wound, particularly. Mr. Smith, I think, is a very kind man, and 
exhibited kindness to the judge ; but he was in his office before that. I have seen no change 
in the relations between Judge Busteed and Mr. Smith since his removal as district attorney. 

By Judge Busteed: 

Q. Is there a hotel in Montgomery that a man of nice tastes would stop at.—A. The 
Exchange is a pretty good house. 

Q. Did you ever sleep there.—A. I did. 

Q. Had you any companions during the night.—A. I must say I was not troubled with, 
vermin, and that it is regarded as quite a respectable hotel. I have never slept in any of 
the rooms of the European House, in Montgomery, but the table is pretty good there. 

By Mr. Semple: 

Q. What is the character of the Exchange Hotel in comparison with other hotels in the 
State of Alabama.—A. I do not think it is equal to the Battle House, in Mobile, but I think 
it is a comfortable place for a person to stay. 

Q. Do you know of this money distributed by order of the informer having been paid over 
to the informer.—A. Not of my personal knowledge. 

Q. Was McCroskey a witness in the case in which the cotton was condemned and a part 
of the proceeds were assigned to him.—A. Ido not know. I was not employed in that 
case at the time and know but very little about it. I was consulted by Judge Rice and con¬ 
ferred with him in regard to the form of the suit, and gave my opinion that it was a mis¬ 
joinder. I do not know anything about the money being paid. A non-suit was taken at 
this time. 

Q. Was the non-suit on account of the misjoinder, or on account of the misdescription of 
the property.—A. I am unable to say. I can only state the suit was abandoned and another 
suit brought. 

Q. What was the ruling of the judge upon the question of misjoinder.—A. I am not sure 
that I was in the court when that was done. I have stated all that I can state when I say 
the suit was abandoned and another suit instituted. It occurs to me that I did hear the sug¬ 
gestion from Judge Busteed that the proper mode would be to withdraw a juror ; that that 
was the practice in the north. In regard to the first specification of charge second, I can 
say that I was employed by General Wager Swayne to represent the Freedmen’s Bureau in 
reference to certain real property which was attempted to be condemned by libel in the dis¬ 
trict court. General Swayne was the assistant commissioner of the Freedmen’s Bureau for 
Alabama. The property in question previously belonged, as I understood, to a man by the 
name of Philip J. Weaver, in the city of Selma. It was libelled for condemnation in the 
district court. I engaged in the case as the attorney for the bureau. General Pettis, I think, 
was on Weaver’s side, and James Q. Smith was for the libel. I did not file a claim for 
the land in the court for the reason that the Freedmen’s Bureau claimed, under the United 
States statute, turning over lands belonging to the Confederate States to the bureau. The 
statute, however, will speak for itself. My recollection is that it required the Freedmen’s 
Bureau to take possession of such lands for the purpose ultimately of establishing any 


schools alike for the white and black population. I united with Mi*. Smith in procuring a 
decree of condemnation of the property. I made no separate claim for the bureau on the 
giound that it would place the United States in the anomalous position of exhibiting two 
competing claims tor the property. My idea was that the judge would condemn the property 
and then turn it over to the party to whom it belonged without any sale, the title being in 
the United States and the United States having by its laws appropriated it for a particular 
purpose. I did not think it was necessary for one branch of the United States to libel the 
land and then come in and claim it through another department. The original owner in this 
case, as well as I could learn, had sold the land to the Confederate States, receiving their 
treasury notes, or bonds, in payment, and conveyed it to the Confederate States. It was 
now claimed on the part of the heirs of Mr. Weaver, who is dead, that the land was con¬ 
veyed under duress; that it had been appropriated by the Confederate States against the will 
ot the owner. I went in, as I stated, with Mr. Smith to condemn the property, and we 
worked very hard on it together for a time. My recollection is that I referred to the statutes 
of the United States, upon trial, and showed how it was that I claimed for the Freedmen’s 
Bureau, stating that when we came to a condemnation of the property I was in favor of con¬ 
demnation, but not of sale; that I should demand that the property be turned over to the 
Freedmen’s Bureau, the Freedmen’s Bureau being a part of the United States which appeared 
tor the condemnation of the property. After the case was tried Judge Busteed had it under 
advisement, and for fear he should, in the hurry of business incident to the proceedings of 
court, overlook the claim I had made, when Judge Rice was going down to Mobile in ref¬ 
erence to some other matter I sent by him to Judge Busteed a brief, or rather a memoran¬ 
dum, in which, as I recollect, I referred to the statute under which the bureau claimed this 
land, putting into the brief a portion of the statute itself. The land was condemned. I do 
not know whether it has been sold or not since the decree of condemnation. I presume the 
records of the court will show. At all events General Swayne came to me and complained 
of the result, and I explained to him what I had done in the matter, and when Judge Busteed 
came up to Montgomery some time after that General Swayne and myself saw him in the 
back room of Mr. Smith’s office, and I asked the judge if he had received my communica¬ 
tion sent down to him by Mr. Rice. I understood him to say he had. General Swayne told 
me he had received a letter from Judge Busteed stating that the attention of the judge had 
not been called to the statute vesting these lands in the Freed men’s Bureau, and I thought 
he was disposed to complain of me for not calling the judge’s attention to that point. I am 
inclined to think that I showed General Swayne the brief I had sent to Judge Busteed. I 
think at any rate I showed him that I had called the attention of the court to it. 

Q. Did I understand you there were any other persons present except Judge Busteed and 
yourself.—A. I asked Judge Busteed in the presence of General Swayne if lie had received 
the communication as I stated. 

Q. Do you know of any other cases than that of the United States vs. this tract of laud 
which has been spoken of. 

(Question objected to by Judge Busteed on the ground that no allegations in regard to 
other cases are contained in the specification. Question allowed by the committee.) 

A. There were several cases in which the Freedmen’s Bureau claimed to have disposed of 
the property and in regard to which libels were filed for their condemnation in the district 
court. One was a large number of tracts of land composing what was termed the Briarfield 
Iron Works, in Shelby ebunty. I was spoken to in this case by General Swayne to defend 
the case, and afterwards employed by the person who purchased from the bureau by the 
name of Lyon. I put in a claim for Mr. Lyon, representing himself and others as the per¬ 
sons who purchased at a sale made by General Swayne. While the case was pending the 
Congress of the United States passed a law confirming the title of Mr. Lyon and vesting the 
title of the United States in him as the purchaser under said sale. I do nut know that the 
Freedmen’s Bureau, as such, sold the land. General Swayne, I think, claimed to have sold 
it under the direction of the Secretary of the Treasury, the treasury having taken possession 
of the land by its agents after the surrender. This land had been purchased by the Confed¬ 
erate States of the original proprietors and used as a public foundry, as I understood, and 
some agent of the government had been stationed there to take care of the property, aud it 
was sold by General Swayne under the direction of some authority of the United States. 

By Mr. WILSON : 

Q. Under that direction he sold real estate and conveyed it.—A. He did, with the foun¬ 
dry upon it. I think for $80,000, which money was received by General Swayne and 
accounted for to the government, as I was informed. 

Q. And that sale was not considered as carrying sufficient title to the purchaser.—A. The 
purchasers considered their title good, but the land having been libelled in the United States 
district court, General Swayne, I think, proposed to ask for an act of Congress in order, I 
suppose, to prevent all controversy in regard to it. After the act had been passed, a letter 
was received by Mr. Lyon, possibly throue i 'h General Swayne, from the Attorney General of 
the United States, stating in substance, as well as I remember, that inasmuch as the United 
States had vested the title, not only by sale but by subsequent confirmation by Congress, in 
him, it was proper that Mr. Lyon, if he desired any further confirmation by decree ot court, 


24 


should himself, or by his attorney, take the management of the case. I produced that letter 
in court and was permitted by Judge Busteed to file such a libel as I wanted, and I did pre¬ 
pare an amended libel, seeking to carry out the theory I speak of, and seeking to have a 
condemnation of the property as property which had belonged to the confederate government 
and forfeited by its use, and then to have it turned over to the owner without sale. 

By Judge Busteed : 

Q. Availing yourself of the district court to carry out the statute.—A. Yes, sir. 

By Mr. Wilson : 

Q. The libel was not for the purpose of sale —A. I amended the libel, leaving out that part. 
The amendment has never undergone judicial decision—the case being untried. The object 
is to strengthen the title by the judicial condemnation of the property. 

By Judge Busteed: 

Q. And you were allowed to do it by me upon motion.—A. Yes, sir; I was allowed to 
do it. 

Q. Do you recollect whether J. Q. Smith made opposition to that motion to amend.—A. I 
think he did, and was going to say that if Mr. Smith ever yielded any legal point taken by 
him without opposition, I do not recollect it just now. 

By Mr. Chandler : 

Q. As a matter of fact, was not this foundry property claimed by four competing parties. 
Did not the ordnance department of the government, and officers of the Freedmeu’s Bureau, 
the officers of the military department of the United States, and the marshal, claim it some 
time during its history —A. I do not know ; I was not familiar with the early history of that 
matter. I was simply brought into the case by having my attention brought to it by Mr. 
A. K Shepherd, who had been one of the original owners of the land, who sold it to the con¬ 
federate government. He requested me to see General Swayne. That he wished to see me. 
Ho told me of having sold the land and that they were making in the district court an attempt 
to condemn and sell the land, and thus fritter away in costs the proceeds of the land I 
wrote to Mr. Lyon on the subject, informing him of the condition of the case, and he in reply 
telegraphed to me to go into the defence of the case, which I did. 

Q Do you know of this and similar property being claimed by the ordnance depart¬ 
ment.—A. I do not. 

By Mr. Semple : 

Q. In relation to the iron claimed by Mr. Shepherd, I want to ask you if there was not 
some iron libelled.—A. I do not recollect the exact form of the libel now, as to its descrip¬ 
tion; there was a large quantity of scrap iron, &c., on the property, which had been used 
as a naval foundry for the Confederate States. This, I understood, was seized by Mr. 
Hardy, the marshal. Mr. A. K. Shepherd employed me to put in a claim for a large part of 
the iron seized by Mr. Hardy. This iron, as Shepherd claimed, had been previously sold by 
the authority of the government to Mr. Shepherd, who paid his money for it. 1 put in a 
claim for Mr. Shepherd. That iron was afterwards sold, as I was informed, and the pro¬ 
ceeds placed in the First National Bank of Selma, as I have heard and believe. Mr. Shep¬ 
herd claims his interest in the proceeds. 

Q. Do you know of any other property of a similar character having been sold.—A. Oidy 
in small parcels, if at all. I think I heard there was a warehouse used by the confederate 
government in Greenville which had been sold; but I suppose its value is not more than 
$600 or $700. 

By Judge Busteed: 

Q. In this confusion of claims between the bureau and the district attorney was not the 
struggle whether the bureau should have it for its uses and disposition or whether the dis¬ 
trict attorney should by a process of libel have it for the uses of the government and his. 
fees. Was not that the quarrel.—A. I do not know what the claim of Mr. Smith was; I 
did not get any information from him. General Swayne contended that the United States 
having already appropriated this property by law, the district attorney was proceeding to 
have it condemned in the district court and sold, the result of which would be that a large 
portion of it would be disposed of in fees and costs, &c. 

Q. And Mr. Smith on the other hand wanted to retain it by process of libel in the court.— 
A. Yes. The struggle was somewhat bitter between General Swayne and Mr. Smith. I 
was retained by General Swayne, as I said. 

Q. I recognized you as appearing in behalf of the Freedmen’s Bureau in that case without 
any objection, although the district attorney already appeared in the case for the United 
States —A. Yes. 

Q. And I recognized you against the objection of the district attorney made in open court 
alleging that he represented the government.—A. I have no distinct recollection of that. I 
think it is more than likely that Mr. Smith would take such an objection, and did; but I 
certainly was recognized as appearing for the bureau. 

Q. You stated that General Swayne read a part of the letter of mine to you concerning 


2f> 

this land at Selma.—A. I think that I stated that General Swayne showed me a letter from 
you or told me its contents. 

(Judge Busteed here read a letter from himself to General Swayne dated Mobile, Ala¬ 
bama, June 5, 1867.) 

WITNESS. Upon your reading the letter I am inclined to think I did not see it—that 
General Swayne only stated the contents so far as related to your attention not being called 
to the statute. It was not a long letter, according to my best recollection. If the letter you 
have just read was*the one referred to I did not read it. 

By Mr. Semple : 

Q. In the course of any proceeding upon the case of the Briarfield Iron Works were any 
instructions produced from the Attorney General of the United States, or any other person.— 
A. I have said a letter was received from the Attorney General of the United States, or it 
may have been the Assistant Attorney General—some law officer of the United States. 

Q. This was after the passage of the act referred to ; was any received before that time.— 
A. I do not recollect; some letters were received during the investigation, but I do not 
recollect whether they were before or after the passage of the act. In regard to the specifi¬ 
cation of charge third I heard Judge Busteed, in his charge to the grand jury, mention the 
offence of libel as a very heinous one, or something of that sort; he characterized it in very 
strong terms, not stronger than it deserved, and then stopped short. It may not be proper 
for me to tell my impression at the time. He said nothing more of it in the charge. I was 
a little surprised at his mentioning the subject of libel, and hence my attention was attracted 
to it. Of the first specification to charge fourth I know nothing. In respect to the second 
specification I will say that I was the attorney of Rose Morgan, who had been sued by some 
northern firm—it may have been Martin & Graydon. She was sued as administratrix, I 
think, in addition to the plea of non-assumpsit. I put in the plea of ne unques executrix : that 
she as a party did not hold the position, as administratrix, in which she was sued. J. Q. 
Smith, I think, was on the opposite side of the case, and while my memory is not very dis¬ 
tinct in reference to the charge that I asked the judge to give, I am distinct in the fact that 
no proof was made that she was the administratrix of James Morgan, deceased, and I think 
I asked the court to charge that in the absence of such proof the plaintiff could not recover, 
which he declined to do. The case went against me, and the judge gave me a bill of exceptions. 

(Judge Busteed here read his notes of the trial of the case referred to.) 

Witness. That is a very correct history of the case as to the charge asked. I recollect 
that I asked him to charge that it was incumbent on the plaintiff to prove that the defendant 
was the administratrix. 

• 

By Mr. Eldridge : 

Q. Was there any allegation in the declaration as to the character of the defendant.—A. 
The suit was brought by Martin &, Graydon against Rose Morgan, administratrix of James 
Morgan, deceased. The word “as” before “administratrix” was allowed to be put in by¬ 
way of amendment. I put in the plea that she was not administratrix, and 1 insisted that it 
was incumbent on them to prove it. 

By Mr Semple : 

Q. By virtue of the statutes of Alabama, was the complaint or plea required to be sworn 
to.—A. They were not. 

Q. When was that case tried.—A. I think at the May term of 1867. 

By Judge Busteed : 

Q. This case is not appealed.—A. No, sir, it is not; the defendant is not able to meet the 
expense of an appeal; the time, however, is not yet out. and she may still appeal. 

Q. The gravamen of the complaint of the second specification is that this decision against 
you was corruptly made; do you know whether this was corruptly done, or do you believe 
it to have been corruptly done.—A. I do not know it; £had at the time no reason to believe 
that it was corruptly done; I think it was very strange. 

By Mr. Semple: 

Q. As you were asked your opinion, I will ask if you were not astonished at it.—A. I was ; 
it was “ hornbook ” law there, and I was astonished that the judge did not understand it. 

By Mr. Eldridge: 

Q. There is nothing very strange in deciding a law point wrong, is there.—A. No, sir; 
but I think it was very strange that this point had been so decided. 

By Mr. Wilson : 

Q. Was there a claim in the case that there had been no proof tending to show that the 
defendant was administratrix.—A. There was no proof. The allegation was made in the plea 
that she was not. 

Q. Was there any replication to the plea.—A. No, sir; our practice is not to file replica¬ 
tions to pleas of this sort. 

Q. Who were the plaintiffs.—A. I do not know them; they were alleged to be non-resi¬ 
dents. There was no defence as to the merits of the case that I know ot. 


26 


Q. Were the plaintiffs there.—-A. No, sir; not that I know of. 

Q. W as Mr. Smith at the time district attorney, or was it subsequent to his removal.— 
A. I am not sure; I think he was removed before that time. I was not employed in the case 
of Harper vs. Graves and others, mentioned in the third specification to the fourth charge I 
was present during a part of the time the case was under investigation in the court, and what 
I may state in reference to it is just such recollection as in the bustle and business of the 
court, myself possibly engaged otherwise, I am able to give. I remember that application 
was made to substitute or allow the landlord to come in and defend, so a£ to put the title in 
issue. It was not an action of ejectment properly speaking. I think it was a proceeding 
under the statute of Alabama, which is a simple statute authorizing the plaintiff to complain 
that he was in possession of certain lands, and that the defendant unlawfully turned and 
keeps him out of it The practice was to try it as an action of ejectment so far as to allow 
the real owner of the land to come in and ma^e himself a party and defend. In this case I 
think Mrs. Gayle, if I recollect right, claimed by her attorney to be the owner of the laud, 
and desired to come in to defend ; that the motion was made to allow her to come in, but 
was disallowed ; I merely recollect that fact. I was surprised at the decision, supposing the 
motion to have been properly made. 

Q. What is necessary to be set out in support of that motion under your practice.—A. In 
our practice the landlord comes in to be made a party, and if he is not recognized as such, 
the landlord moves the court to be permitted to come in as a defendant with the tenant in 
possession. 

Q. Was the motion in this case objected to in its form.—A. I do not know. I paid ve$y 
little attention to it. I did not hear any objection raised to the form in which the motion was 
presented. I recollect that during the argument it was insisted that the widow of the deceased, 
aside from any right she might have in her separate estate, had the right to retain possession 
of the homestead and surrounding land until her dower was assigned, and that no dower had 
been assigned in that case, and the claim was that she should not be turned out of possession. 

Q. Who was the attorney for the plaintiff.—A. J. Q. Smith. As I said before, having no 
interest in the case at all, my memory cannot be relied on with much certainty for the state¬ 
ment which I make as to what occurred in this case. 

By Mr. Eldridge: 

Q. Do you know anything about the announcement which is alleged in this specification 
from the bench, that he would imprison any juror who should presume to find a verdict not 
in accordance with this charge.—A. I do not think I was present when that announcement 
was made, if it was made ; I heard it spoken of. 

By Judge Busteed : 

Q. By whom.—A. I cannot recollect now. 

By Mr. Semple: 

Q' y° u hear it spoken of by Mr. Morris to myself.—A. That is recently. I am now 
speaking of the time it occurred. 

(Judge Busteed here read his notes of the trial of the case referred to.) 

By Mr. Woodbridge: 

Q. What was there, if anything, in the conduct of Judge Busteed in the trial of the case 
vs. J92 bales of cotton which indicated improper or corrupt motives on his part.—A. I am 
not prepared to say there was anything; I think there was error in the ruling. 

By Mr. Ciiurciiill : 

Q. Granting that he was right in proceeding as on the instance side of admiralty, was he 
then correct.—A. I think he was in error in refusing proof offered to show the relation occu¬ 
pied by Mr. Morris in regard to the case. That is a matter, of course, about which lawyers 
may differ. I think Mr. Morris, standing in the relation he did—as he replevied the cotton— 
would have the right, as being bailee for both plaintiff and defendant, to interpose a claim. 

By Mr. Eldrtdge: 

Q. If he was really the agent for the bank, what matter was it whether he proved his 
agency or not, provided the interests of the bank w r ere shown.—A. I do not know that it 
would make any difference, except that it might have excluded any advantage he might 
derive from his relation to Wilson, the plaintiff, in the attachment. 

Q. Was his privilege to that right denied.—A. The judge refused to admit proof showing 
that Morris had replevied the cotton. 

Q. Did he allow the bank’s interest to be shown.—A. He did. It was necessary to 
show the interest of the bank in order to condemn the cotton. 

Q. What I desire to inquire is, what difference it would make in regard to the decree which 
he rendered, provided the authorizing of the bailee character of Morris had been shown.—A. I 
am not prepared to say that it would have made any difference. 

Q. The right of the United States to the cotton would not have been changed by any such 
proof as that.—A. No, sir, 1 do not think it would. 


V 


27 


By Mr. Semple : 

Q. Suppose the bank had refused to permit Mr. Morris to claim as agent, what would 
have been the result of that decision.—A. These are legal propositions which, if the com¬ 
mittee please, I would prefer to have answered by a better lawyer than myself. ’ It occurs to 
me that then Mr. Morris would be without any right in court. If he could not connect him¬ 
self with the interest of the bank, and could not show the relation he held to Wilson, he 
would have been without any standing in court. 

By Mr. Eldridge : 

Q. The cotton was condemned, was it.—A. Yes, sir. 

. Q- In ^at view of the case, whatever error may have been committed, it was without in¬ 
jury, was it not.—A. I am not prepared to state that. Mr. Morris, as bailee, had to pay the 
taxes on the cotton and incur a large amount of expense otherwise in having the cotton 
relieved from a seizure made by the Treasury Department, and whether, in the adjustment 
of the claims of the United States against the cotton, the amount that he himself had paid by 
virtue of his relation would be allowed upon the equity of principles of an admiralty court or 
not, I am not prepared to state. 

By Judge Bu steed: 

Q. Do you not know that in one case allowance was made for transportation and for ware¬ 
housing to Mr. Morris directly, and this allowance was deducted from the amount aud judg¬ 
ment rendered tor the balance.—A. I understood that Mr. Morris was allowed, as credit upon 
judgment, some amounts he had paid to Mr. Hardy, the marshal. 

By Mr. Eldridge : 

Q. Was that a personal judgment against Mr. Morris.—A. The cotton was condemned, 
but it had been sold pending the trial, by order of the court, before condemnation. There 
was no stipulation in this case, and there was no personal judgment. The cotton had been 
sold, and the money was in the registry of the court. 

Q. In that event there would have been no fees or costs-to affect Mr. Morris.—A. I do not 
know what allowance was made to Mr. Morris, if any, out of the proceeds. 

Q. Was there anything in the conduct or manner of Judge Busteed that led you to be¬ 
lieve he was acting wrongfully or ignorantly of the law.—A. Judge Busteed was somewhat 
impatient and hasty in the case. I saw nothing that would impugn his motives as acting 
corruptly in the matter. I think he decided the law wrong, but others may have thought 
differently. 

Q. Was the question of the admissibility of proof argued.—A. Yes, sir; Judge Rice argued 
the question mainly, and I think I argued some points also. 

Q. Were you listened to by the judge.—A. In this and in every other case, so far as my 
recollection serves me, Judge Busteed has heard me with courtesy and patience. 

Q. Did he listen to every counsel to the full extent they desired.—A. I think it possible he 
may have limited Judge Rice. I do not remember distinctly. 

Q. He heard two of you on the same side of the case.—A. I cannot remember as to that. 
I think the record of the case will show what points upon testimony were argued. I cannot 
state from recollection with certainty. I do not think there was a great deal of argument. 
Rice made the principal speech. 

Q. In saying he was somewhat hasty in his decisions, did you mean it was on that 
case, or on the hearing of cases generally.—A. I do not know that the remark applies more 
to this than to other cases, though I could not say that it was his universal practice. In some 
of the arguments Judge Busteed allowed the greatest latitude. In this particular case I 
could not say that he was more hasty in his decision in regard to the admissibility of proof 
than in other matters connected with the case. I think he went over the case rapidly, and I 
think the record itself will show that it was hastily gone through with. 

By Mr. Woodbridge: 

Q. Who appeared for the United States in that case.—A. James Q. Smith, the district 
attorney; Judge Rice and myself appeared for Mr. Morris and the bank ; and Messrs. Watts 
aud Troy for (Jawkins and Harris, the other claimants. 

By Mr. Semple : 

Q. Did Mr. Morris offer a stipulation treating the case as an admiralty proceeding.—A. My 
recollection is that I moved for a stipulation in this cotton, but I think it was shown that 
the cotton was not in good condition, probably going to waste, and the judge ordered it to 
be sold, and it was sold, as I understood. 

Q. Did the fact, the cotton was shown to be in bad order and liable to waste, prevent the 
execution of a stipulation, if the parties were willing to enter into it.— A. Not necessarily. 
But it was a matter Judge Busteed held he thought he had discretion about as to the allow¬ 
ance of the stipulation or not. 

By Mr. Wilson : 

Q. Was his ruling upon the question excepted to.—A. I do not think it was; I do not think 
the record shows anything about it. 


28 


Q. You say that Judge Busteed’s deportment on the bench towards you lias been uni¬ 
formly courteous ; what was his deportment on the bench in that particular case towards the 
other lawyers in the case—to SamuelT. Rice, and to Watts, and Troy.—A. My recollection 
is not very distinct in regard to that. To the best of my recollection, I do not think that 
Judge Rice and Judge Busteed got along together quite as well in the case. Judge Rice 
was importunate in asking questions, and Judge Busteed occasionally would refuse to allow 
a question to be propounded, because he considered, as he said, that it had been included in 
previous questions. We had some disagreeable interludes occasionally, though I do not 
recollect distinctly about it. The bill of exceptions will show even that, I think. It will 
show with particularity as to questions being asked several times and why they were rejected. 
It will give you a better idea of the deportment of the judge in a case, and of counsel, than 
I can do at this distance of time, by undertaking to state from recollection, without refresh¬ 
ing my memory in regard to it. I can say, in regard to the first specification in the filth charge, 
that there were a great many libels filed. I have never counted them, but they were 
numerous; I suppose approximate 900 or 1,000 in all. I have already spoken of the rule 
Judge Busteed adopted, the provisions of which I do not distinctly recollect, though they 
are entered, I suppose, of record, and copies may be obtained. Judge Busteed stated that 
he had this morning received a certified copy of the rule referred to from the clerk of the 
United States district court for the middle district of Alabama, and which, with the permission 
of the committee, he would read. The paper referred to is as follows : 

“UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF ALABAMA. 

“At a district court of the United States, begun on the 23th of November, in the year of 
our Lord one thousand eight hundred and sixty-five, and of the independence of the United 
States the eighty-ninth year, the district attorney, James Q. Smith, esquire, read the follow¬ 
ing rules prescribed for payment of costs and fees, confiscation cases, which were adopted 
and ordered to be entered on the minutes : 

“ Rule First. —One per cent on all sums to the amount of $20,000; one-half per cent, on 
sums over $20,000; and one-fourth per cent, on sums over $40,000 dollars and less than 
$50,000, and one-eighth percent, on sums over $50,000. 

“ Rule Second. —This rule of costs and fees only effects cases where the defendants have pro¬ 
cured a general or a special pardon and desire a dismissal on payment of cost and fees, as 
above prescribed. 

“ Rule Third —In cases where property seized by the marshal has been advertised or wit¬ 
nesses are not included in the above per centum. 

“ Rule Fourth. —The actual disbursement of the attorney of the United States marshal and 
clerk are not included in the above per centum. 

“ Rule Fifth. —That in all cases where the defendants claim the benefit of general or a 
special pardon, they must, in cases of special pardon, file with the clerk a copy of the warrant 
of pardon, and in cases of general pardon a copy of the oath of amnesty.” 

By Judge Busteed: 

Q. Were these the rules I invited the attention of the bar to, and asked their criticism 
upon.—A. I think they were. 

Q. Do you recollect my stating that I had done the same thing in regard to the matter at 
Huntsville in the northern district.—A. I do not remember as to that. As I was saying in 
regard to these cases, a large number of them were settled upon exhibition of pardons, copies 
of which were filed with the clerk, as required by the rule, and upon payment of costs the 
cases went off the docket. In some cases the parties had obtained pardon before the suit 
was brought, and these cases went off the docket without the payment of costs. Some of 
these cases still remain on the docket. 

Q. Do you recollect the proceedings in the case of William F. Bird.—A. I do not remember 
any of the circumstances ol that case. I had no connection with it. 

By Mr. Eldridge : 

Q. Do you know of Judge Busteed ever sharing in any of these costs or fees.—A. I do 

not; I know nothing about it. 

* 

By Mr. Semple *. 

Q. What were the services rendered by the district attorney’s clerk and marshal in these 
cases in which there was no contest, and which were never brought to trial l I refer to 
these thousand cases, more or less, where the property was not seized, and to which you 
have referred just now.—A. '1 here was a printed form of libel which was filled up by writ¬ 
ing in it the name of defendant, and probably the part which the particular party took in 
the rebellion. There was some writing to be done in each case. 

By Judge Busteed : 

Q. And it had to be different in each case.—A. Of course it had. There was something 
to be done in preparing, issuing, and signing the citation of the party to appear and show 
cause. 


29 


> 


By Mr. Eldridge : 

Q. Was not the labor actually done very considerable. — A. The principal amount of labor, 
I should say, would consist ot the marshal’s citation of the party to show cause why bis 
assets should not be confiscated. 

By Judge Busteed: 

Q. Was it not a very common practice of the bar at Montgomery to interpose, by demur¬ 
rer, special plea, and by every description of special objection, to every proceeding taken by 
James Q. Smith, the district attorney.—A. I am now speaking of the preparation of these 
cases. In regard to the trial of the cases when they were first brought in, I myself thought 
they were unwarranted by any rule of law I was familiar with, and I still think so. I was 
not very familiar with admiralty practice. I prepared some objections to the libel, and had 
them printed, having a number of the cases to defend, in which I moved to quash the proceed¬ 
ings upon various grounds. One was that proceeding to condemn all a mau’s property, 
real and personal, and choses in action of every description, without any description of it, 
and without any oath being taken ; another was, that such proceedings could not be main¬ 
tained for the condemnation of property, there being no conviction of the party for treason, 
were unwarranted. There were many other exceptions presented. In direct answer to the 
question, I think that the bar of the middle district of Alabama did fight the libel cases 
brought by Mr. Smith pretty hard. 

By Mr. Semple : 

Q. I asked you a question just now, whether you know of any one of these cases filed 
against individuals for the confiscation of their property having been tried.—A. I do not. 

By Mr. Eldridge : 

Q. In your judgment, was the amount of fees fixed for these cases unreasonable under 
the circumstances.—A. I did not think so at the time it was fixed ; but when the cases 
ceased to be litigated, and the parties merely came in to settle them, I think the fees became 
the subject of some oppression in some cases, particularly where the parties were not well 
able to pay this amount of cost. 

Q. Was any effort made, on the part of the bar, to have the rule changed in these cases.— 
A. Not that 1 know of. 

By Mr. Churchill : 

Q. In cases where the property had not been seized, how was the amount of costs fixed.— 
A. it was generally assumed, I think, that the amount was to be $200. I do not know 
of any of this class of cases where the fees amounted to more than that sum. 

Q. Was there any general complaint among the bar practising before Judge Busteed re¬ 
specting this allowance.—A. I never heard anybody making complaint to Judge Busteed in 
regard to it. 

Q. Were there cases where the amount of costs was less than $200.—A. There were some 
cases where the district attorney settled them for less than $200 in which the parties showed 
that they were not worth $20,000. 

By Judge Busteed: 

Q. Please state whether it was not the fact that a great majority of these cases were settled 
out of court, and that the parties appeared in court, and on motion of the district attorney, 
with the consent of the opposite counsel, the cases were stricken from the docket.—A. I 
think so. At least some order was taken by which they were settled; they were generally 
disposed of by consent of counsel; I know of no case that was tried. I think in the case of 
Watson, where the party had died, I insisted before the court that there could be no confis¬ 
cation beyond his life. The judge had some doubt about it, but allowed judgment to go by 
default; which, however, was set aside next morning. I would not consent to appear after, 
the judgment; I thought the judgment would be a nullity. I think, however, in this case 
the costs were paid. 

By Mr. Churchill: 

Q. In case the property of the party was less than $20,000, would he not be entitled to be 
discharged without costs.—A. No; not unless he showed a pardon, or had taken the amnesty 
oath before the libel issued. 

By Judge Busteed : 

Q. Would you know an extract taken from the print of the Montgomery Mail.—A. I do 
not know. 

Q. Have you any doubt that the extract I now show you was cut from that paper.—A. It 
would be difficult to say ; it looks like the print of the Mail. 

(Judge Busteed here read from the article referred to a statement of a decision made by 
him, that in libel cases against persons who had died since the filing of the libels the suit 
must be dismissed without costs.) 

WITNESS. I do not know as to that. I recollect distinctly that in the Watson case judg¬ 
ment by default was taken. That case was.not argued, however, and the judgment was set 
aside upon the payment of costs ; so I understood. 


30 


By Mr. Semple: 

Q. Have you observed any difference in the deportment of the judge towards those who 
were opposed to J. Q. Smith, and towards counsel when J. Q. Smith was not of counsel in 
the case.—A. Mr. Smith was district attorney, and, as a mere opinion, I would say that 
Judge Busteed seemed to recognize that he was not a man of much ability ; and, I am 
inclined to think, whenever he could point out to him the right course in pleading, or any 
thing of that sort, he would sometimes make suggestions. I have sometimes seen him treat 
Mr. Smith as roughly, perhaps, as he would most of us. I think that Judge Busteed’s 
demeauor to the bar was varied a good deal. As I said before, he treated me with marked 
courtesy ; I certainly had no reason to complain on that score ; and I will say, in justice to 
myself, that I extended the same courtesy to him. There were other lawyers who were a 
little more combative than myself, and I saw sometimes, as I think, an exhibition of a want 
of patience, and of what the lawyers themselves considered a want of proper courtesy, on 
the part of the judge. 

By Mr. Wilson : 

Q. Was that in cases where the proper courtesy was exhibited by attorneys towards the 
court—A. I allude especially to one case, the case of Governor Watts, when he left the 
court-house. The circumstances I do not remember sufficiently to enable me to say whether 
the attorney was in fault or Judge Busteed was in fault. I cannot particularize cases in 
which Judge Busteed exhibited towards Mr. Smith any particular lenity that he would not 
exhibit towards other lawyers. I can only say that I think he was generally more lenient to 
Mr. Smith than to others. 

By Judge Busteed : 

Q. And for the reason you have stated.—A. Yes, sir. 

Q. Do you refer to him in cases in which he acted as district attorney of the United States 
solely; or also to cases in which he was representing other clients than the United States.— 
A. Mr. Smith was generally successful. Sometimes, of course, he would lose a case, as 
other lawyers would ; but he was generally successful in his cases. 

By Mr. Semple : 

Q. With or without reference to the merits of his cases.—A. I should not say that; he 
gained some cases in which, as I thought, the judge committed errors. 

Q. Did he gain any cases in which, in your opinion, the absurdity of the opinions of the 
judge was astonishing ; and if so, in what cases.—A. There was one case in which I was sur¬ 
prised at the ruling of the judge. 

Q. The question is, were you astonished.—A. I was somewhat astonished. I alluded to 
the case the other day in my examination—that of Rose Morgan. 

By Judge Busteed: 

Q. You referred to the single instance of Governor Watts leaving the court-house as a 
case in which complaint was made of my conduct; do you recollect that a letter was written 
to Governor Watts by myself on the subject at the time.—A. I was not cognizant of that ; 
I heard of it. 

Q. Do you not recollect that the letter was published in the Montgomery Mail.—A. I do 
not remember that; it may have been. 

Q. Look at the print now shown you and say whether it recalls it to your mind.—A. It 
does not recall it to my mind; it may be I was at the time not taking the Mail, but the Ad¬ 
vertiser; I may have seen it and read it. I know nothing about the second specification to 
this charge; as to the third specification, so far as my knowledge extends, the name of the 
informer was not included in the libels ; if the proceedings were in behalf of the informer it 
generally stated James Q. Smith, district attorney, prosecuting in behalf of the United States 
and the informer, but the name of the informer was not stated in the libel. 

By Mr. Wilson : 

Q. Was it usual to state the name of the informer.—A. These cases were sui generis so far 
as our practice was concerned. 

Q. I refer to this class of cases—as to the general rule among them.—A. I am not suffi¬ 
ciently versed in admiralty law to state. Before Judge Busteed it was not usual to state the 
name of the informer. The record simply stated that the libel was on behalf of the United 
States and an informer. In regard to the case of Morris and Johnson, I was not employed 
in the case until the proceedings upon the order of distribution, in June, 1867, except to get 
a bill of exceptions, and I do not remember whether the record shows whether there was an 
informer or not; the record now in the Supreme Court will show. 

By Mr. Eldridge : 

Q. Was there any proof of the existence of an informer.—A. At the time of the argument 
upon the distribution Mr. Smith produced, I think, an informer’s information and security 
for costs. The proceedings, as I have said, were after the court had adjourned its term. I 
am certain that Mr. Smith brought before the judge what purported to be the information 


31 


filed by McClosky upon the trial the 4tli of June. The judge ordered it to be filed. Whether 
it was entered of record or not, 1 do not know. T know nothing of my own knowledge in 
regaid to a bond to supersede having been tendered. Judge Rice, who was one of the 
counsel for Mr. Morris at the time, was with me in my office consulting as to the manner of 
taking the case up and preparing the papers for taking it up. We discussed the question 
as to whether it would be proper to take it up as a common law proceeding by writ of error, 
and I agreed with him that inasmuch as Judge Busteed had tried it upon the instance side 
of admiralty, we could take it up by appeal. A decision of the Supreme Court since made 
sustains the opinion of Judge Rice and myself that it should have been tried as at common 
law, and taken up on a writ of error. But that decision also went to the effect that an appeal 
could reverse the decision of the case. The case is now pending in the Supreme Court upon 
the appeal. 

By Mr. Semple : 

Q. Do you know where the money collected upon the execution against Morris and John 
sou was at the time of the order referred to of distribution, when you appeared to show cause 
why the order should not be made.—A. I do not of my own knowledge. My information 
is. that it was deposited in the First National Bank of Selma. I have understood this from 
Mr. Morris and from other persons, and I have also conversed with the receiver of the bank, 
Colonel Cadle, as the attorney of the bank, and requested him not to pay it out. 

Q. Did you not hear Judge Busteed say in this room that the money was there on deposit — 
A. 1 did. 

(Judge Busteed assented.) 

Witness. I know nothing of my own knowledge of anything having been paid out on 
the order of distribution. I have heard it stated that some of the money has been paid, and, 
from seeing a letter from McClosky, and from conversation with Mr. Morris and others, I 
infer that some of it has been paid out. 

By Judge Busteed : - 

Q. What letter of McClosky do you refer to; who showed it to you.—A. I think Mr. 
Morris showed it to me. 

By Mr. Eldridge : 

Q. Do you know this man McClosky.—A. Yes, sir ; he is now resident in Knoxville, as 
I am informed. 

Q. Do you know his circumstances.—A. I think he was poor when this order of distribu¬ 
tion was made. He was at one time engaged as a clerk or assistant at Camp Watts, in the 
office for obtaining troops, a part of the conscript bureau. 

Q. Was he in the army.—A. Only in that way, so far as I know. At one time he was 
with Major Ready, and at one time under John T. Morgan, who was at one time made chief 
conscript agent for Alabama. 

Q Do you know whether he was actually an informer in this case.—A. I do not; I 
believed at the time the order of distribution was argued that he was irresponsible, and the 
argument was adduced before the court that if this money was paid out it might go into the 
hands of irresponsible parties. 

By Judge Busteed: 

Q. Did you say anything to me about the informer being insolvent.—A. I think I used 
the word “ irresponsible,” as above stated. I was satisfied that lie was irresponsible. But 
if he was entitled to the money as an informer, as a matter of law, that, of course, furnished 
no ground why the distribution should not have been made. 

By Mr. Semple : 

Q. If you know anything tending to elucidate these charges which you have not detailed 
to the committee you may state it.—A. There is nothing which occurs to me at present. 

By Judge Busteed: 

Q. Are you acquainted with 'John T. Morgan.—A. Yes, sir; he is a brother-in-law of 
mine. 

Q. Are you acquainted with his professional and social standing in Alabama.—A. I think 
I am. 

Q. State it.—A. He stands high as a lawyer and a gentleman, as far as I know. 

Q. He is a man of truthfulness and honor.—A. I think so. 

Q. Are you acquainted with his handwriting.—A. Yes, sir. 

Q. Have you seen him write often —A. Very often. 

Q. Is the paper shown you in his handwriting.—A. It is in his handwriting. 

Q. Are you acquainted with ex-Judge John A. Campbell.—A. I am. 

Q. Are you acquainted with his social and professional reputation in Alabama.—A. Iam. 

Q. Are you acquainted with his handwriting.—A. I am; I have seen him write. 

Q. Is the letter now shown you in his own handwriting—the whole of it.—A. It is. 


32 


(Judge Busteed proposed to offer the two letters just referred to in evidence. 

The committee decided not to receive them at present.) 

Q. Did you know, in his lifetime, Benj. F. Porter, of Alabama.—A. Yes, sir. 

Q. Were you acquainted with his professional and social reputation in that State; if so, 
please state it.—A. Judge Porter did not rank among the first lawyers of Alabama. 

Q. Was he the reporter for the supreme court of that State for many years.—A. I think he 
reported nine volumes; and assisted in reporting about five volumes more. Judge Porter 
was a man I esteemed for his social qualities, and I esteemed him as a very respectable law¬ 
yer, though he did not stand very high in the profession. 

Q. How was the reporter selected at that time.—A. By the judges of the. court, I think. 

Q. Was he a reporter of the supreme court while you were on the bench.—A. No ; a long 
time before that. 

Q. Are you acquainted with his handwriting.—A. Yes. 

Q. Was the letter now shown you written by him. 

(Judge Busteed proposed to place the letter referred to in evidence inasmuch as the writer 
was dead; but inasmuch as the motion was not allowed by the committee, the letter was not 
produced.) 

Q. Do you know Wm. Knox, of Montgomery.—A. I do. 

Q. Js he an old citizen of that city.—A. He is. 

Q. Do you know what his social and personal standing is in the community in which he 
resides.—A. He is very highly thought of; he was president of a bank in that city for many 
years, and heretofore has been known as a man of wealth. 

Q. Do you know whether he was wholly insolvent at the time Judge Busteed staid at his 
house at Montgomery.—A. I think he was; a short time after that he filed his petition as a 
bankrupt. 

Q. Were any assets presented.—A. Some assets ; but I think the mortgages on them will 
swallow them up. 

Q. You received the President’s pardon.—A. I did. 

Q. The pardon contains conditions in compliance with which the privilege is to vest.—A. 
Yes; there were several conditions ; but I do not now remember what they were. I think 
it required that the party should accept it, take the oath required, and release all claims he 
might have against the government for property taken during the war; and I am inclined to 
think it required that if any proceedings had been instituted against him the costs should be 
paid. 

Q. Do you recollect that at the term of court held in Montgomery in June, 1863, Henry 
C. Semple argued the effect of a pardon upon the question of costs in the case of the United 
States against R. J. Galloway and T. J. Wyatt.—A. I do not. 

Q. Do you know whether an opinion was given by the court upon that direct question in 
that case.—A. I do not recollect. 

Q. Would you recollect if I were to read it to you.—A. I could not tell. 

(Judge Busteed proposed to read, but the committee decided not to allow the paper to be 
read.) 

Q. Do you recollect that some time in the year 1866 or 1867, at Montgomery, a secret 
meeting of attorneys was held, to which you were invited, to discuss my conduct and man¬ 
ner upon the bench.—A. I was invited to a meeting of the bar in Montgomery the object of 
which I did not know until I got to the meeting; I was there informed that it was to take 
into consideration your conduct as a judge, and what action the bar should think best to 
take in the premises. 

Q Who was the presiding genius at that meeting.—A. I cannot remember who occupied 
the chair. 

Q. Did Thos. H. Watts or Henry C. Semple.—A. I do not think Mr. Semple was in the 
chair; I am pretty sure he was not; and I cannot recollect whether Mr. Watts was. 

Q. What, if any, action was taken by the meeting.—A. I think it resulted in taking no 
action except a resolution to employ a short-hand reporter to take down the proceedings in 
court. 

Q. And a stenographer was employed.—A. There was one afterwards attended ; I do not 
know whether in compliance with that resolution; a stenographer by the name of Norcross 
was employed there. 

Q. The lawyers in your State had not been in the habit of taking any minutes of testi¬ 
mony at all, had they.—A. None except to keep memoranda of exceptions taken, and to 
enable them to write out bills of exception ; and sometimes memoranda are taken to assist 
the lawyer in his argument. 


January 4, 1869. 

Examination of William P. Ciiilton resumed : 

Witness. I will state to the committee that on Thursday last, when I was examined, hav¬ 
ing to answer without time for reflection, I find that I made an error in the matter of statin**- 
that I saw Mr. Wilson at Mobile when I went down to obtain some bills of exceptions, 
which I think was in November or December, 1867; after I was informed about the pay¬ 
ment of money by Mr. Morris, my memory is refreshed by what passed through my mind at 


33 


the time, and which has occurred to me since my examination. I remember now that I was 
in doubt in my own mind as to where Mr. Wilson was, and that I did not inquire about him 
because of what I had heard from Morris, so that I am satisfied that I did not see him in 
Mobile when I was there on this occasion. The last time I saw him, except at New York in 
.July last, was at the last court which Judge Busteed held in Mobile, I think in the snrino- 
of 1868. * ° 

I also find I was under a misapprehension to some extent, or at least I wish to add some¬ 
thing- to what I stated in regard to the practice of admitting landlords to defend. I was 
right in saying that the practice required that where the relation of the landlord, or his 
interest in the subject-matter of the suit, was controverted on the side of the plaintiff, there 
must be some proof showing his interest in the subject-matter of the suit by affidavit or 
otherwise, before he could be admitted to defend. I stated that that was the practice ; that 
was my practice. But I am not prepared to say that as a general thing that practice was 
iollowed in the courts of Alabama. Ordinarily the landlord comes in and there is no contro¬ 
versy as to his right to defend. But I find the practice in other States as well as Alabama 
is that where the interest of the landlord is controverted, where it is alleged that he is not 
the landlord, in order to sustain his motion to be permitted to appear to defend he must 
make proof by affidavit or in some way that he has the right to appear and defend. 

By Mr. Eldridge : 

Q. In the case referred to, do you recollect whether the proper steps were taken to entitle 
the landlord to appear in the ease.—A. I was not in the case and I am not prepared to state. 
If there was any issue made as to the interest of the landlord I do not remember it. 

By Judge Busteed: 

Q. The motion was to substitute the landlord for the tenant; to substitute one class of 
defendants for another. Is such the practice in the courts of Alabama.—A. Under the old 
code, section 2205, and section 2606 in the revised code, it is provided, “When the suit is 
against a tenant the landlord must, on his motion, be made defendant.” 

Q. Now please answer my question whether it is usual in the courts of Alabama to admit, 
on motion, one class of defendants to be substituted for another class.—A. If there was a 
motion to substitute, it would not have been regular to have allowed it. Plaintiffs are 
entitled to have both as defendants, if landlord comes in. 

Q. Would not a motion to substitute entirely throw out the other defendants.—A. A motion 
to substitute one for the other would ex vi termini exclude the other. As I said before, I do 
not remember what the motion was, and what I know about it was gathered up in court, 
probably interrupted by other engagements. In the matter of the rules adopted by Judge 
Busteed in respect to costs in confiscation cases, I stated that the rule which he adopted as 
to the allowance of compensation to the officers of the court was adopted, as I recollect it, 
the first term of the couit; my memory is not distinct about that at all. It may have been 
the second term. I do remember distinctly that at the time the rules were suggested to the 
members of the bar Judge Busteed requested comments or suggestions on them from the bar. 
The bar generally had not then been admitted to practice. These are all the corrections I 
wish to make. I have looked over the statute of the United States, to which I referred the 
other day, as conferring upon the Freedmen’s Bureau the lands that I speak of. The law 
will be found P2ik Statutes at Large, page 176, section 12. I find that these lauds were for 
the support, in the first instauce, of colored schools altogether; and that afterwards, when 
the bureau ceased, the benefits were to be extended to States having schools without distinc¬ 
tion of color. (The statute was shown the committee.) Turning now to the fourth specifi¬ 
cation under the fourth charge, I will say that I was one of the counsel employed upon the 
part of the claimants for the 192 bales of cotton. The record of that case is now in the Supreme 
Court of the United States, and the record of exceptions will be found to give a correct history 
of the case as far as it goes, and will be found to contain a somewhat minute and elaborate 
history of the proceedings. The bill of exceptions was made out by myself and Judge Bus¬ 
teed, from memoranda which I had, and from his book of notes, which corresponded with 
each other with considerable exactness. It is not necessary for me to speak of what the 
record will show ; 1 take it for granted that the committee will have the record before them if 
they desire it for any purpose. It will show that Mr. Morris, by his counsel, offered in 
evidence the proceedings had on the attachment which was levied on this cotton, and that 
he replevied the cotton under the act of the legislature. 

By Mr. Semple: 

Q. Please describe the case upon which Mr. Morris’s claim was founded.—A. It appears 
the Bank of Louisiana, through G. G. Steever, purchased a large amount of cotton, I think 
740 bales or more ; of this the 192 bales in controversy were purchased of J. C. B. Mitchell, 
and left upon his plantation, to be delivered upon the order of the bank or its agent. Mr. 
Steever was the representative of the bank, and after the war had ceased, some time in 1865, 
and before the civil authorities had been established in Alabama, Mr. E. II. Wilson, ot New 
Orleans, sued out an attachment for a large sum, approximating $100,000, against the Bank 
of Louisiana, and caused the attachment to be levied upon this 192 bales and other cotton 
which the baok had purchased. General Smith, then in command, authorized a justice ot 
the peace to issue an attachment and appoint bailiffs to levy the attachment, which was to 
3 B 


34 


be made returnable at the next properly organized court under the laws of the United States. 
These will all appear in the record of the case in the Supreme Court. By a statute of Ala¬ 
bama, when an attachment is sued out against a non-resident and the defendant does not 
appear and replevy, a stranger, that is, a person other than a party, may come in and replevy 
the same by giving bond and security as the law provides to return the property, if the defendant 
fails in the action within 30 days after judgment of the court. On default, an execution on 
the forfeited bond will issue against him and his securities for the amount of the judgment 
which may have been recovered. I was one of the attorneys for Wilson, but was employed, 
however, some time after the attachment had been sued out. The claim put in by Morris as 
agent of the bank was this: The United States filed against this cotton a libel; it was seized 
by the marshal under process of the district court; a claim was put in by Mr. Morris as 
agent, I think, for the Bank of Louisiana, the cotton having been levied upon as the prop¬ 
erty of the bank. 

By Mr. Woodrridge : 

Q. Mr. Morris’s connection with the case was as agent of the Bank of Louisiana.—A. 
Yes; Mr. Morris was simply bailee by reason of his having replevied the cotton. He had 
no interest in it otherwise, so far as I know. Before going into the trial, my recollection is, 
and the record will show, that the judge required the claim to be made in the name of the 
bank by Mr. Morris as its agent, so that the bank itself should be a party. 

By Judge Busteed: 

Q. In other words, I required that ihe proceedings should conform to the rule of pro¬ 
ceedings in admiralty under which the case was brought.—A. Yes, as you construed it. 
Upon the trial we offered in evidence a transcript of the proceedings on the attachment 
against the bank, which was objected to on the other side, the objection sustained and the 
transcript excluded, as the bill of exceptions will show, 'l'he judge proceeded as on the 
instance side ot an admiralty court, instead of allowing the case to take the ordinary course 
of the common law; he consequently denied a jury to the claimant, aud himself tried the 
facts as well as the law in accordance with proceedings on the instance side of admiralty. 

By Mr. Semple : 

Q. Let me ask you whether there were not two claimants in this suit.—A. Yes; there 
were two other persons, I think, Cawkings and Harris, who claimed they had purchased the 
cotton from J. C. B. Mitchell, who had previously sold it to Steever, and they exhibited a 
bill of sale from Mitchell to them. They put in a claim for the cotton. 

Q. Was there any conflict between the rulings asked for, or objections made by the 
counsel of the bank and the counsel of Cawkings and Harris.—A. The records show, I think, 
very clearly and fairly, the proceedings, and if there be any conflict, it will appear upon the 
proceedings themselves. I would not venture an opinion upon that subject, because the 
record will show with greater certainty than 1 can state at this distance of time from memory. 

Q. You speak of having obtained a bill of exceptions. Did you obtain it at that time, at the 
time you speak of, in Mobile, or when and where —A. The bill of exceptions I obtained in 
Mobile was m the case of 155 bales of whatiscalled the picked cotton, which was a case similar 
to this, except that there was but one claimant. The bill of exceptions in the 192-bill case I 
obtained from the judge in the city of New York. Part of it was prepared at Judge Busteed’s 
residence, and the remainder in the city of New York. 

Q. Was it during or after the term of court that the decrees were rendered and this bill 
of exceptions signed.—A. In the first case of 155 bales, the court adjourned very soon after 
the case was brought, and, understanding that the judge would probably leave for Mobile 
that evening, I prepared a bill of exceptions. Of course it was hastily prepared, and I 
endeavored to see the judge that he might sign it that evening before leaving town. I did 
not see him, and sent the bill of exceptions by Judge Rice, requesting that he should deliver 
it to Judge Busteed. What was done with it I only know from hearsay, from what Judge 
Rice told me. 

Q. Did you put in a bill of exceptions in that case.—A. Afterwards I got a bill of excep¬ 
tions. I went down to Mobile at the time I have spoken of and got the bill of exceptions 
in that case, and also in the case of Johnson & Morris, and 120 bales. 

Q. How about the bill of exceptions you got in New York; was that after the adjourn¬ 
ment ot the court.—A. Yes; the decree was delivered in vacation in that case, and notin 
open court; I do not remember how long after the adjournment of the court. 

Q. Is the bill ot exceptions dated as of the day on which it was signed, or as of the day 
on which the decree was rendered.—A. I do not remember ; I presume it bears the correct 
date, the day on which it was signed. 

By Judge Busteed: 

Q. Are you acquainted with J. Little Smith, the brother of Robert H. Smith.—A. I have 
seen him several times. I have no very particular acquaintance with him. 

Q. He is an attorney of the Mobile bar.—A. Yes, sir. 

Q. Are ypu acquainted with his handwriting.—A. I am not. I may have seen him write, 
but I could not depose to his handwriting. 


35 


Q. About the month of Mav, 1868, were you in Mobile attending the district and circuit 
courts of the United States for the southern district of Alabama.—A. I was there at tie 
spring term, 1868. 

Q. Do you recollect a case being tried for the recovery of property which J. Little Smith 
had sequestrated under the rebel government of Alabama ; had sequestrated and sold in 
Mobile, from loyal citizens.—A. I was present in court when a suit was tried, and something 
about sequestration came out on the trial. I do not remember the names of the parties; 

I recollect something was said in reference to some rents which had accrued during the war. 

It appeared, as well as I remember, that the property had been sequestrated and that Mr. 
Smith was the receiver under the sequestration laws ; that the property had gone into his 
hands and had been sold or rented to defendant by him as receiver, and by defendant rented 
out. in the time of the war. Questions were asked as to the value of the rent, and what it 
had rented for in the time of the war, which were answered by the witness. Mr. Smith, on 
the other hand, wished to know in what kind of currency the rents spoken of were to be 
paid, whether in confederate currency or otherwise. Judge Busteed, upon the motion of the 
other side, would not permit that proof to be made. My attention was merely casually 
brought to these things in the court, without any interest in the case, and I cannot pretend 
to be accurate in my statements. 

Q. Do you recollect Judge Busteed stating to J. Little Smith, after some question was 
about to be asked, that the same question had already been asked four witnesses, and that 
he must not ask it again.—A. The question had been asked substantially, I think several 
times, whether of different witnesses or of the same witness I am not prepared to say. Mr. 
Smith seemed to press the question, and Judge Busteed remarked to him that the same ques¬ 
tion bad been put several times, and that he must not ask the question again, giving the 
remarks some emphasis. 

Q. What was the answer and the manner of J. Little Smith to that suggestion and direc¬ 
tion from the court.—A. Mr. Smith, apparently without much emotion, at least without 
exhibiting much emotion, in a tone of voice rather low, asked, “ What would you do if I were 
to put it ?” The judge remarked, with still more emphasis, “ I will send you to jail, sir, for 
contempt of court.” This was, as well as I remember, his words. 

Q. What was the physical condition of the judge then.—A. I know as a historical fact 
that he had been shot, aud that he was complaining very much; he stated that the physician 
had advised him not to hold court more than an hour each day. 

Q. Was Robert IT. Smith present, at the court at the time.—A. My recollection is that 
Robert H. Smith was in court. 

Q. Do you know the fact that J. Little Smith went immediately and consulted with Rob¬ 
ert H. Smith.—A. 1 saw him talking with Robert H. Smith very soon afterwards. I did 
not hear what was said between them. 

Q. State whether, to your own knowledge, it is possible now, in 1868 even, and whether it 
was possible in 1865, when I first opened my courts in Alabama, to get persons to fill fed¬ 
eral offices who could take the oath prescribed for office-holders by Congress.—A. It would 
have been exceedingly difficult to obtain such persons in that State from among the resi¬ 
dents of the State. There were other persons who came there from the north, and some 
possibly who had been connected with the military, who could take the oath, but there was 
much difficulty in procuring persons who could take it. 

Q. That difficulty continues now, does it not.—A. I think it does, to some extent. 

Q. Do you not know that the postmaster at the Montgomery office found it almost impos¬ 
sible to get clerks to take the oath.—A. I have heard it so stated. I do not kuow that he 
told me himself, nor do 1 recollect distinctly who told me; but such I am satisfied is the 
truth. 

Q. Do you not know that Judge Busteed has been persistently and eagerly attacked by 
the •‘Montgomery Mail” ever since his advent into the State of Alabama, and is not the 
“Montgomery Mail” a newspaper organ of very considerable power in controlling the public 
sentiment in that State.—A. The “Montgomery Mail” is a popular paper, and I think has 
a good deal of influence, and has published a number of very caustic articles against Judge 
Busteed. 

■ Q. What do you mean by caustic articles; have not these articles accused me of every 
species of wickedness and corruption in office—have they not assailed my private character 
almost daily.—A. I remember the articles very distinctly indeed. They published a series 
of articles, according to my recollection, under the heading of “The unjust judge.” I 
could not state their contents. I know they were very abusive. 

Q. Have you any doubt that the public sentiment of Alabama is in a good degree influ-' 
enced and controlled by this “Montgomery Mail.”—A. I have no doubt that the “Mont¬ 
gomery Mail” exercises considerable influence in the formation of public sentiment. 

By Mr. Eldridge : 

Q. Who commenced the attack at the time ot this difficulty between Judge Busteed and 
Mr. Smith.—A. I think I have detailed it about as I recollect it. Mr. Smith Avas defend¬ 
ing for his client, and urging questions to bring out in what currency they had contracted 
to pay the rents. Judge Busteed refused to allow it to come out. Mr. Smith pioposed \aii- 


36 


ous questions, and on proposing one the judge told him that the question had been asked 
several times, and that he must not ask it any more; when Mr. Smith asked the judge, 
“ What would you do if I should ask it?” 

Q. Was the manner of the judge, when he told him he must not ask the question any 
more, offensive.—A. I think the manner indicated the judge w r as irritated. 

Q. Did the judge first show irritation.—A. The judge’s manner is very energetic, and 
sometimes it is difficult to tell whether he is irritated or not. Mr. Smith seemed to keep 
very cool, but he is a very cool man. 

By Mr. Churchill : 

Q. Did the circumstances justify irritation on the part of the judge, in your judgment.— 
A. Having had the honor to be a judge myself, I have always thought patience in a judge 
was a very great virtue. I think he ought always to maintain his equanimity; though in his 
physical condition at the time he would probably be less able to do so. 

By Judge Busteed : 

Q. Do you know Judge Alexander McKinstry, of Mobile.—A. I know him. 

Q. What is his profession and social reputation in the State of Alabama.—A. I am not 
as well acquainted with Judge McKinstry as I am with a number of the lawyers. He is 
considered a good lawyer. I do not know that I can speak from personal knowledge of his 
social standing in Mobile. 

By Mr. Semple : 

Q. You say you attended a meeting of the members of the Montgomery bar, and you have 
been asked what was the result of that meeting, replying that it resulted in obtaining a short¬ 
hand reporter. Was that resolved on at the first meeting, or subsequently.—A. 1 think at 
the subsequent one. I think no resolution was passed at the first meeting. 

Q. You were asked whether Mr. Watts or myself presided at that meeting. Do you not 
remember that Mr. Watts was not there.—A. I do not. 

Q. Do you know whether John A. Elmore presided at that meeting.—A. I am inclined 
to think he did ; I am not positive ; I think he presided at one of the meetings, and possibly 
both. , 

Q. Was there a general concurrence of sentiment as to the necessity of preparing for the 
impeachment of Judge Busteed, for the safety of the State of Alabama and the honor and 
interest of the members of the bar; and if so, did you concur in that sentiment.—A. There 
were charges brought against Judge Busteed, ani I think the most pointed charges were 
stated by yourself. There were other gentlemen who addressed the meeting, but several of 
the members thought that under the circumstances an attempt to impeach Judge Busteed 
would be defeated. Mr. Brooks, and I think Captain Elmore and myself, conferred with our 
brethren of the bar in that meeting, and thought the attempt to impeach Judge Busteed 
would be defeated. I remember expressing my own views, that whether the charges should 
be sustained or not by circumstantial evidence, such was the excited state of the political 
affairs of the country and the status of gentlemen of the bar in Alabama, the attempt would 
probably not result in his impeachment. 

Q. Was there any objection made by any member of the bar present to the statement of 
the necessity of taking steps towards the impeachment of Judge Busteed, except that made 
by yourself, by William M. Brooks, and perhaps by Captain Elmore, that we could not 
expect to get justice from a republican Congress.—A. I do not know that it was stated in 
that way; that was substantially the objection urged, and I do not know that any other 
objections were urged. 

Q. Did you hear any opinion expressed that he was not guilty of the charges brought 
against him.—A. A large number of those present did not speak on that subject. I heard 
no expression of opinion in opposition to taking steps against Judge Busteed outside of the 
practicability of the movement at that time, under the circumstances. 

Q. Will you be good enough to tell the committee whether I did not vindicate the repub¬ 
lican Congress against such a suspicion, and said 1 believed we could have justice done by 
them.—A. I do remember your saying that you had been to Washington, or had seen some 
one who had been there, and your stating that you believed that Congress would do justice 
to our people; and my recollection is that you alluded to some fact or circumstance that had 
made an impression on you while here, or from what some one said who had been here. I 
am not certain about this. I think you said you thought justice could be obtained—that 
impeachment was probable. 

Q. Who presided at the last meeting held upon that subject. A. I am not prepared to 
state; my recollection is not distinct. If you allude to the meeting held last month, before 
you left Montgomery, I presided at that meeting. 

Q. Was that in reference to this matter of impeachment.—A. Yes. 

Q. Did the members of the bar within the middle district generally attend these meet¬ 
ings.—A. There were two meetings held, I think in the same week; if I am not mistaken, 
one was in your office. I cannot remember who presided; my impression is Captain John 
A. Elmore did at one, and possibly at both. A number of attorneys attended them—some 


37 


from a distance. At the last meeting, at which I presided, a tew weeks since, there were a 
number of the gentlemen of the Montgomery bar present, and none from a distance that I 
remember. 

Q At that meeting did any one, in response to the charges against Judge Busteed, say 
be believed him to be an honest judge, or an intelligent one—A. If any speech of that sort 
was made I did not hear it, or it has escaped my memory. 

By Judge Busteed : 

Q. Were there any written charges gotten up by any of these attorneys and exhibited at 
this meeting.—A. None that I know of. 

Q. Everything depended upon word ot mouth.—A. If there was anv writing I did not 
see it. 

Q- blow many orators exercised themselves on either or both of these occasions and made 
speeches.—A. I think Judge Stone made a speech, and I think Major Semple spoke, and 
others. 

Q. Do you mean by Major Semple, Henry C. Semple, here.—A. Yes. I think that Judge 
Brooks also made a speech. 

Q. I want to know about the names of the distinguished gentlemen who made speeches 
in the affirmative; you say no one spoke in my behalf.—A. It was in your behalf so far as 
advising against any present action was concerned. I took that ground, as did Captain 
Elmore and Mr. Brooks. 

Q- Were there any persons at that meeting except attorneys.—A. On one occasion Gov¬ 
ernor William H. Smith was there; be was not then governor; he was connected with the 
Ireedmeu’s Bureau; I do not think he made any speech. I am inclined to think that Mr. 
Hodgson, the editor ot the Montgomery Mail, was present at one of these meetings, perhaps 
both; I am pretty well satisfied he was at the last of the two first meetings. They are 
attorneys, but were not then practicing. 

Q. Was any intimation given to the judge, by letter or by a committee of lawyers, that 
they intended to discuss the question of his manners, and an invitation given to him to be 
present.—A. None that I know of; I am satisfied that there was not. 

Q. So far as the judge was concerned, then, this was intended to be a secret meeting.—A. 
I know nothing of what the originators of the meeting intended in that regard. 

Q. Do you recollect that following that meeting there was about a column of matter pub¬ 
lished in the Montgomery Mail, containing a hypothetical case about the judge and his man¬ 
ners.— A. I recollect the article. 

Q. W T ould you know' it if you were to see it.—A. I think so. 

Q. Who wrote that article.—A. I do not know. 

Q. Do you not know that Henry C. Semple wrote it.—A. I do not; I have the impression, 
simply from the style of it, that Judge Stone was the author. 

Q. When you came down to see me in Mobile, about December 10, 1807, and had a con¬ 
versation with me, in which I detailed to you how grievously I thought the bar had treated 
me, do you recollect that one of these meetings was the subject of conversation between us 
in my room up-stairs, and that I told you I should have been very glad to have attended a 
meeting of my professional brethren, iisten to their complaints, and if anything in my con¬ 
duct was wrong, if in my power I would have been very glad to remedy it.—A. I think 
something of the sort was said ; I cannot recollect the language. 

Q. Do you know any persons in Montgomery besides Josiali Morris, who has paid Henry 
C. Semple for coming on to Washington.—A. I do not know that he has ; all I know is that 
I have paid nothing at all myself. 

Q. You spoke of a meeting held recently at Montgomery, at which you presided ; had 
that meeting any reference to me.—A. I did not know the object of the meeting until I came 
there. I was called to the chair. I think my partner told me there was to be a meeting of 
the bar for some purpose at Watts & Troy's office, and both of us went there. I was called 
to the chair, I think, on motion of Mr. Troy. I requested Mr. Troy to explain the object of 
the meeting, saying I did not know myself what it was. The object of the meeting was 
explained, so far as my memory now serves me, by Major Semple, (who did so at the request 
of Mr. Troy,) to be to devise some means for raising funds which might be required in the 
matter of the investigation of the charges against Judge Busteed at Washington. It was 
stated that it was not proper for one individual only to pay the expenses of this matter, which 
was for the benefit of the public; that if the judge was guilty of the charges alleged against 
him it was proper that the different members of the bar, as well as others, should contribute 
to the expenses of the prosecution ; and a committee was appointed for the purpose of solicit¬ 
ing funds to pay for counsel, if it was thought best to retain one—it was stated that one had 
already been spoken to—and also for the purpose of defraying Mr. Semple’s expenses. 

Q. Was there a subscription list prepared on this occasion.—A. There was not. 

Q Was there a collection taken up, according to the primitive usages in churches.—A. 
No, sir. 

Q. Who was the committee appointed to obtain the subscriptions.—A. Thomas H. Watts, 
Captain John A. Elmore, and myself. 

Q. Have you collected anything.—A. Nothing. 


38 


Q. Have you tried to.—A. Well, after that meeting I went down to Selma on some busi¬ 
ness, and from there went on a visit to my sister-in-law with my wife, and have done nothing 
in the matter of collecting. 

Q. Did you assume to take the duties of that office.—A. I did not decline it, though 1 
objected to being one of the committee when the resolution was offered. 

Q. You have been on terms of social and personal intimacy with me from that time until 
to-day.—A. Yes, sir; I believe so. 

Q. You have been at my house where my wife and children resided, on Long island, and 
staid all night with me.—A. Not since that time ; I did before. 

Q. You were in my room last night two or three hours.—A. Yes. 

Q. And personally you have nothing to complain of.—A. I have not. 

Q. Will you say, upon your responsibility to this committee, that you believe I have ever 
corruptly made a decision in Alabama; and if so, in what case. —A. I do not know, nor 
have 1 formed an opinion upon that subject. I have endeavored to keep myself free from 
forming an opinion. Charges have been brought against you by numerous persons, which I 
have all the time indulged the hope and believed you would be able to explain away. To 
say that I believed you have corruptly done anything in the matter of any decision would 
be to say that I know something upon which to predicate that belief. I know nothing upon 
which I could form any definite judgment, and I therefore say that I have not formed any 
opinion that you have acted corruptly. 

Q. Will you say to this committee that you believe any decision of mine, since I have 
been in the State of Alabama, has been corruptly given.—A. I cannot answer the question 
otherwise than I have answered it. I have said that the evidence before me would not justify 
me in saying that I believe you have corruptly decided any case. Such is my conception of 
the enormity of the offence of a judge acting corruptly in deciding a case before him that I 
should require the strongest evidence before believing it. If I were to express the opinion 
that you have corruptly decided a case, it must be from a combination of circumstances which 
this committee will have before them. 

Q. Do I understand you to answer the question affirmatively or negatively.—A. You must 
understand it in this way, that I have no knowledge from which I would be justified in say¬ 
ing to this committee that you have acted corruptly. If I expressed an opinion, it would be 
from hearsay ; and I have heard no circumstance or act alleged against you that might not 
be susceptible of explanation on your part; charity, therefore, requires that I should place 
the best construction of which the facts arc susceptible upon the conduct alleged against you. 

Q. You have invited me to your house, where your wife and children were staying, at 
Montgomery.—A. Yes. 

Q. In June, 1863, you gave a dinner, to which you invited me, with the non-resident mem¬ 
bers of the bar then in Montgomery.—A. I did. 

Q. I sat at your right hand, I believe.—A. On my left hand. 

Q. One of the principal objects in giving that dinner was that it should be in my honor.— 
A. Yes. I had beeu down to Mobile : you had treated me very courteously and hospitably 
there. 

Q. I had previously been at your house in Montgomery, where your wife and children 
were.—A. Yes, sir: in 1866, I think. 

Q. And you had subsequently been at my house, where my wife and children were.—A. 
Yes ; in July, 1868. 

Q. Would you have accorded to me the hospitality of your home and the compliment of 
this public entertainment in June, 1868, and would you have accepted my hospitality, if you 
believed for a moment that I was a corrupt judge, and had corruptly decided any case since 
my advent to Alabama.—A. I would not have done it. I must be allowed to say this in 
explanation: Judge Busteed and General Swayne were prominent gentlemen from the north in 
Alabama. When the war ceased I took the oath, and having been connected with what was 
called the rebel government in a prominent way, I accepted the situation in good faith, with 
the sincere desire that all sections should come together, and that the people of the south 
should show by their conduct that they were willing to recognize as brothers all those with 
whom they had been engaged in struggling against. When Judge Busteed came to Ala¬ 
bama, I believe I was among the first who contributed to give a bar supper at the Exchange 
Hotel, and have him invited, for the*purpose of giving the members of the bar an oppor¬ 
tunity of showing respect and honor to him. After General Swayne came, I took him by 
the hand and invited him to my house also. A number of charges were made both against 
General Swayne, politically, and Judge Busteed. I gave but very little credence to those 
charges. I showed by my example, a disposition to break down all those prejudicies and 
barriers to friendly intercourse between gentlemen who came from the north and citizens of 
my own section, and not only did it then, but have continued to do it, and to do it in oppo¬ 
sition to public sentiment in a great measure, and at the cost of bringing some odium upon 
myself. I knew nothing myself personally against Judge Busteed except what I have 
detailed here as to his manner in court. He has treated me very courteously and kindly, and 
I was determined that the reports of his corruption, in the absence of any knowledge upon 
my part, should not interfere with the relations which existed between him and me. It was 
for these reasons, as also from the fact that I found Judge Busteed socially a most interesting 



39 


gentleman and exceedingly hospitable, that I have always continued friendly relations with 
him so far as I was concerned. 

Q. The suit brought by Mr. Semple grew out ot a decision of the court in the Mott case, 
which you strove to get settled.—A. It did. I volunteered to do so in a conversation which 
I have previously detailed. 

By Mr. Semple : 

Q. I wish to ask you whether you were down to Judge Busteed’s room last night by any 
matter of business, and whether you visited his house last summer upon business.—A. My 
object in visiting his house last summer was to get two bills of exceptions signed by Jud^e 
Busteed. I telegraphed and wrote to him to ascertain where I could find him in New York, 
but they did not rea.ch him in time, and while in the city I sent my son out to Judge Bus¬ 
teed’s house to see if he was at home. The judge sent word that he would be in the city the 
next day; not finding him I telegraphed to him, but he did not get the telegraph, as I was 
informed, until he came in. He then very kindly invited me to his house. That night we 
went into a room to engage in preparing the bills of exception, but postponed it till morning 
and worked on them a part of the morning, then came to the city and finished the balance. 
Last night Judge Busteed told me he had a bill in chancery, which was presented to him for 
an injunction by Mr. Morgan, and he desired that I should call on him, which I did. and 
examined the bill. 

By Judge Busteed : 

Q. We d id something else besides business, did Ave not.—A. Yes. We had a very social 
time. Mr. Stanwood was present also. 

Washington, D. C., January 4, 1868. 

Hon. Geo. E. Spencer, United Stated senator from Alabama, sworn and examined. 

By Mr. Eldridge ; 

Question. State what you know of the charge now shown you, made by Henry C. Semple, 
against Judge Busteed, that he corruptly received money from you and others, registers in 
bankruptcy.—Answer. I have read the charge repeatedly, and it is untrue. 

Q. If you know anything about the subject-matter, tending to show that Judge Busteed 
has been corrupt in his official character, you will state it.—A. I know of nothing which ! 
can state tending to show official corruption. 

Q. Can you state anything in support of or explanatory of the charge shown you.—A. 
During the canvass in the legislature of Alabama for senator, I think the morning of the day 
1 was elected, Governor Smith called me to his room in the capitol at Montgomery, and said 
to me, in substance, this: “They say that you are a friend of Judge Busteed, and that, if 
you are elected, you are going to delend him ; that you will use your entire influence to see 
him safely through these charges.” I said to him, “I shall not do any such thing.” I 
recollect using the expression that “I am in favor of every tub standing on its own bottom. 
If Judge Busteed is guilty, he must fall, and I shall not do anything to sustain him.” He 
then remarked, “Have you any objection to swearing that you gave Judge Busteed $1,000.” 
I replied, “None in the world.” i may state in this connection that at that time, and since, 
parties on both sides have come to me to know what I was going to do. Strong friends of 
Judge Busteed have asked me if I was not going to see him through;- and those whom I 
regarded as his bitter enemies—among whom I might name Governor Smith—have asked me 
to sustain the charges. I may name also, among those who were his opponents in the 
republican party, John C. Keffer. I told them all that I did not stand towards Judge Bus¬ 
teed in any position at all in regard to these charges. I was very free to say I would not do 
anything to injure Judge Busteed, and that I would not do anything to sustain him if he was 
guilty. I had my own private opinion in regard to the matter, which I did not choose to 
express to anybody. When Governor Smith asked me if I had any objection to swearing 
that I gave Judge Busteed $1,000, I replied, “None in the world.” I was perfectly willing 
to state publicly and privately anything I knew of Judge Busteed. That is, in reality, all I 
know in regard to this charge. 

By Mr. Woodbridge : 

Q. Please state under what circumstances you paid Judge Busteed the $1,000 referred to.— 
A. The circumstances were these: I recollect, in conversation with General Burke, one of 
the registers in bankruptcy, and with Mr. Day, clerk of the court, and Mr. Worrel, who was 
also register in bankruptcy, I suggested that, in view of the abuse which Judge Busteed 
had received from different sources in the State, and of the extra amount of work which the 
bankrupt law had imposed upon him, it would be well to make him a present, and that I was 
willing to give him $1,000. General Burke and Mr. Day said they would give him an equal 
amount, and Mr. Worrel said the same thing. This was, as I recollect, some time in Novem¬ 
ber, 1867. Nothing further was said about the matter until after Judge Busteed was shot at 
Mobile. A correspondence took place between Worrel and myself ; and General Burke, Mr. 
Day. and myself talked the matter over at Huntsville. I went to Montgomery, I think about 
the last week of March or the first week of April, 1868, and I went down to a plantation in 
Lowndes county, where Judge Busteed was stopping, and gave him a draft on Mobile foi 
$1,000. I did not give it with any intention of fraud. 


40 


Q. What did you say to Judge Busteed when you gave it to him.—A. I made a little 
speech in which, I think, I expressed my kindly feelings towards him, and I remarked that 
we were not all Martins in Alabama. (Martin was the man who shot him.) I stated that 
John O. D. Smith, who was also a register in bankruptcy in Alabama, would, I thought, 
give him a similar donation—at least, that I should use my influence to that end. I did go 
to Mr. Smith and asked him to make a similar present to judge Busteed. He said at first 
that he would, but postponed it from time to time, and finally did give me an order for $500, 
which I gave to the clerk of the court in Montgomery. He considered that the clerk had 
funds in his hands subject to his order, as he no doubt had. I always put it upon this ground 
with Mr. Smith : I said to him that I got him appointed to the office, and that I desired him 
to make this present to Judge Busteed, to assist him in defraying the expenses attending his 
sickness, &c. His family had to come on from New York, and he had been subject to very 
heavy doctor bills, and I thought it w r as but right that we should make this contribution. 
Mr. Smith was not feeling very well in regard to the treatment he had received at the hands 
of the clerk. I told him I did not think Judge Busteed knew anything about it, or that lie 
had anything to do with it, or was responsible to any extent for the treatment Mr. Smith had 
received from the clerk. 

Q. To w r hat treatment did he refer.—A. It w r as a letter written by Mr. Storer, the deputy 
clerk, in regard to the deposit of bankrupt fees with the clerk, and stating that no peti¬ 
tions would be referred to the register until the fees were so deposited. I had received a simi¬ 
lar letter from Mr. Storer, the deputy clerk. I immediately showed the letter to Judge Bus¬ 
teed, who said he knew nothing about it. 

Q. Who is Storer.—A. His name is A. R. Storer, and was deputy of E. Y. C. Blake, the 
clerk of the district court at Montgomery. 

By Mr. Eldridge : 

Q. When were you appointed ? Was it before you paid this money to Judge Busteed.— 
A. I was appointed and confirmed in June, 1867, and I gave this order to Judge Busteed 
the last week of March, or the first week of April, 1868. 

Q. Did you ever have any conversation with Mr. Worrell about giving this present to the 
judge.—A. Yes ; I had a conversation at Huntsville with Worrell, Burke, and Day, and 
Worrell and Burke both expressed their willingness to give the same present that I did. 

Q. Did you know that Worrell was Judge Busteed’s son-in-law.—A. No, sir, I did not; 
and I do not now r . I do not know of any relationship between them. I think they are great 
friends. I had a conversation on the same subject with Iveffer, and suggested, before he w r as 
removed, that he should make the same present, and he said he would follow r me. 

Q. When did you first make this suggestion.—A. I think in November, 1867. 

Q. .How long after your confirmation.—A. As I said, I was confirmed in June of that 
year. I am not absolutely sure whether Burke or myself first mentioned the matter. It was 
first mentioned in the conversation I have stated, in a room at the Huntsville hotel, between 
Worrell, Day, Burke, and myself. 

Q. Have you ever had any conversation on this subject with Judge Busteed before you 
made the present to him.—A. Never, at all. 

Q. Had he any knowledge that such a thing was contemplated.—A. None, that I am 
aware of. 

Q. Did you understand, before your confirmation, that such a thing would be necessary to 
procure your confirmation.—A. I did not. 

Q. Did you ever have any conversation about the matter.—A. No ; nothing that I recol 
lect. I have talked of the matter in the presence of Smith, Keffer, and others. 

Q. Did you ever write a letter about it to Governor Smith.—A. Not that I recollect. 

Q. Did you ever have any conversation with John 0. D. Smith, in which you told him it 
was necessary to make a present to the judge.—A. I think I have told him he ought to do it. 

Q. Did you ever have a conversation with him in which you told him the judge expected 
it.—A. I told him that the judge expected it, and no doubt I told him the reason why, namely, 
that I had suggested to the judge that I intended to ask him to make such a present. 

Q. Was that before or after you had given the judge the money.—A. That w’as after. 

Q. What did you tell the judge you gave it to him for.—A. As a present; as a testimony 
of our friendly feelings towards him, and because he had incurred a good deal of extra 
expense. 

Q. Was not the real object to compensate him for your appointment as register in bank¬ 
ruptcy.—A. No, sir ; not at all. 

Q. Was not that the occasion of your friendly feelings towards him.—A. No. My reason 
was that a very large amount of extra duties had been imposed upon him by the passage of 
the bankrupt law. 

Q. When did you first become acquainted with Judge Busteed.—A. The first time I ever 
met Judge Busteed was in the city of Washington, in the spring of 1867. 

Q. Where did you next meet him. —A. At Montgomery, in June, 1867. 

Q. How many times did you see him from that until you gave him the money.—A. Five 
or six times. 

Q. What caused the particular friendship that existed between you and the judge._A. I 

do not know of any special cause. 


41 


Q. Was there any cause except the fact that you had been appointed and confirmed as 
register in bankruptcy by him.—A. I felt kindly towards the judge in cpnsequence of the 
kindness and courtesy he had extended to me. 

Q. What kindness besides confirming your appointment.—A. I had put him to a great 
deal of labor. I had written a great many letters to him and received a great many from 
him. I do not know that I can mention anything especial; he has always treated me with 
kindness. 

Q. When you presented him with this order for money, did he object to receiving it.—A. I 
do not know that he objected. He asked me if I was not rather liberal; 1 replied that 1 
could afford it. 

Q. What did he say when you told him that others were going to do the same thing.—A. 
The others, with the exception of Smith, had already done it. I had been to Washington, 
and on my way back I stopped at Huntsville, having business at the clerk’s office, and 
Day and Burke told me they had sent him a draft for $1,000, I think. 

Q. Did you tell Governor Smith at any time that you were obliged to give the money in 
order to retain your office.—A. I have no recollection of it, and I do not think I did. 1 
know when I talked with Governor Smith, on the occasion to which I have referred, I was 
then a candidate for the United State Senate, and I desired to say as little as possible on the 
subject. 

Q. When you told the judge that John D. Smith was going to do the same thing, did he 
* make any objection to receiving the money from him.—A. I forget all that was said on the 
subject at the time. Burke aud Day, as I said, had sent theirs, and when I gave him mine 
I merely made the remark that Smith would do the same thing, or I had asked him to do the 
same thing. 

Q. Who were present when you gave the draft to the judge.—A. I think Worrell was 
present, and that I handed it to Worrell to be given to Judge Busteed. 

Q. Was Judge Busteed present at the time.—A. Yes, sir; and I have an indistinct impres¬ 
sion that James Q. Smith was also present; I am not sure. 

Q. Was there any understanding between Worrell and yourself that you were going to 
give this money to Judge Busteed previous to your giving it to him.—A. As I stated, we 
had such an understanding at Huntsville, in the month of November previous. 

Q. Do you know at what time the other parties gave their money.—A. I do not. It was 
a month or six weeks previous to my handing him the order I have spoken of. 

Q. Did they give him the same sum.—A. They gave him $1,000, I think, as I under¬ 
stood. One of the registers in bankruptcy had died—Judge Bingham, the register for thefith 
district—and, without any suggestion from me, Judge Busteed had given me half that dis¬ 
trict. 

Q. Before or after the $1,000 was given to him.—A. Before. He did it about the first ot 
January. 

Q. Did that add to your fees.—A. Yes, it increased the amount by several thousand dol¬ 
lars. 

Q. Did you know ot business being withdrawn from John D. Smith.—A. I knew it when 
he told me. 

Q. Did you know of it being withdrawn from Worrell.—A. I did not. I had received 
the same order. I think Smith wrote to me in reference to it, and enclosed the order he got 
from Storer. 

Q. Was it a printed order.—A. No ; it was a letter written and signed by Storer, stating 
that hereafter the fees were required to be deposited with the clerk before any' petitions 
would be referred to the register. 

I will state, in this connection, as a matter of justice to the clerks, that they were having 
some difficulty in getting any fees at all, and that it was a disputed question who was enti¬ 
tled to receive the deposit. When Congress amended the act, at the last session, they made 
it very plain by their statute that the fees should be deposited with the clerk. 

By Mr. Churchill : 

Q. Did you receive this order before or after the payment of this money.—A. It was some 
time before. 

Q. Were cases withheld from you.—A. They were for some time; but before I gave this 
money to Judge Busteed—some time before—he had stated to me that he knew nothing 
about it, and had given me instructions to tell Mr. Storer to refer the petitions hereafter as he 
had previously done. 

Q. You did not comply with the order to deposit.—A. I did not. 

Q. Did you receive the petitions.—A. Yes, sir. 

Q. What were the fees of the register worth in your district.—A. I cannot tell how 
much, for the reason that the business has not been settled up; my impression is that my 
fees will amount to something like $15,CIO. The bankrupt law is not very definite, as to 
the fees of officers acting as marshal, clerk, and register. Some of the fees are definitely 
fixed, and some are not; and the decisions vary. 1 have noticed that in some ot the States 
the courts do allow much larger fees than in others. 

Q. So that really the amount of fees depends very much upon the ruling ot the court. 


42 


A. Yes; I notice, for instance, that in Mississippi the fees are nmcli smaller than in New 
York. The law specifies certain fees, but in other cases it is silent and the courts fix the 
amount. 

By Mr. Wilson : 

Q. Were you nominated by Chief Justice Chase.—A. I was. 

Q. Did you have any difficulty in securing 1 the approval of your nomination by Judge 
Busteed.—A. I did not. The judge assured me the first time I ever met him that he would 
confirm me with a great deal of pleasure. In fact, I knew nothing of my appointment until 
after it had been made. I knew that letters had been written by General Dodge and others 
asking my appointment as register in bankruptcy, and on my return from California I found 
the nomination had been made. I noticed in the papers that Judge Busteed was in the city, 
and I called on him for the first time in my life. He met me very cordially ; said he was 
very glad to meet me; that I had been appointed as one of the registers in bankruptcy, and 
that he would take great pleasure in confirming me. He made the remark that “he would 
not go back upon the papers I had.” 

Q. Has he ever, in any way, personally or through others, suggested to you the payment 
of money to him.—A. He never has. 

Q. Do you know whether cases were withheld from any of the other registers who had not 
paid money to the judge.—A. I think not. I do not think any such order was ever made 
outside of the middle district. 

Q. Were there any other registers who never paid money to Judge Busteed.—A. I think 
Judge Bingham never did. 

Q. Do you know whether in his case petitions were withheld.—A. They never were. 

Q. Did John O. D. Smith make him a present also.—A. He gave me an order through his 
brother Robert T., payable to myself, for $500, for the purpose of being handed to Judge 
Busteed. The judge said that he should not t.ike the money, and remarked, “I think he 
begrudges it to me,” or, “ that he does not give it willingly, and I do not care about the 
money.” I think I left the order with Blake. 

Q. Do you know whether in that district any cases had been withheld prior to this pre¬ 
sentation.—A. This same order had been in existence for some time, and loug previous to 
that; when Judge Bmiied’s attention was called to it, he gave instructions to Storer to for¬ 
ward the petitions, and the petitions were forwarded the same as before the order was given. 
This was long before I received Smith’s order for $500. 

Q. Do you know whether petitions went to Smith's the same as to other districts.—A. The 
same as to other districts. I may say here that I thought Worrel was a little grasping. On 
the 1st of June, at the time the bankrupt law expired, I went to Montgomery, and found a 
good many of my petitions had been referred to Worrel; and I also found that some of 
Smith’s petitions had been referred to Worrell. I spoke to Mr. Blake, the clerk, in reference to 
it. He told me there had been a rush of business, and one or two extra clerks employed. I 
went through the docket with Blake, and showed him several petitions of mine which had been 
referred to Worrel, and several which should go to Smith which had also been so referred. 
Blake said it was a mistake ; that he knew nothing about it; that Worrel was in there and 
might have told one of the new clerks to refer these petitions to him. lie immediately made 
the proper correction, and had the petitions re-referred to me, or to Smith, as the case might be. 

By Mr. Eldridge : 

Q. Who creates the geographical limits of these registration districts.—A. They are created 
by a law of Congress, and correspond to the congressional districts. 

Q. What did you mean by saying that the judge gave you half of Bingham’s district.— 
A. When Judge Bingham died I think a man by the name of Humphreys had been nomi¬ 
nated by Judge Chase. Judge Busteed did not confirm that nomination. I knew nothing 
about it until I received the order stating that all the unfinished business of D. H. Bingham, 
late register in bankruptcy, and all the new business arising in the 6th district, would be 
referred alternately to Registers Spencer and Burke. 

Q- In what part of the State was Bingham’s district.—A. In the northern part. My dis¬ 
trict is the 4th, and is in what is called West Alabama. 

Q. Did Bingham’s, Burke’s, and your own district join.—A. Bingham’s district joined 
mine, and also joined Burke’s. My district did not join Burke’s. 

Q. In what part of the State was Smith’s district.—A. It was in East Alabama, and 
joined Burke’s district, but did not join Bingham’s. 

Q. Did your fees depend upon the decision of Judge Busteed in their amount.—A. Judge 
Busteed has the power to increase or diminish the fees. I think he has never, down to the 
present time, made any fee bill. 

Q, Who did prescribe the amount of fees you should receive for particular services.—A. 
There has never been any particular fee bill acted upon or made public in Alabama, and 
none of the cases are yet closed. 

Q. You stated your lee bill would amount probably to $15,000 ; have you yet received no 
pay.—A. I have had funds in my possession. 1 have never settled any' accounts up to the 
present time. 


43 


Have you appropriated any of the funds to your use.—A. I have funds on deposit. 
There are certain fees that are determined by law. I have not appropriated any of the iunds 
to my own use beyond the amount of these established fees. 

Q. Have you had any understanding with Judge Busteed in regard to the fees that he 
would allow.—A. I do not think I have ever talked with the judge upon the subject, or that 
he has with me. I may have said once or twice to him, “ I hope you are not going to be as 
hard upon the registers as they are in Mississippi,” and I believe he answered “I will do 
what is right; you shall not have reason to grumble at my fee bill,” or something of that 
kind. 

Q. Was that before you gave him the money or afterwards.—A. I cannot tell; I think 
some remarks of that kind passed between us, but when I do not know. It is a matter I 
have not cared much about in any way. 

By Mr. Wilson : 

Q. What would your fees probably amount to if the Mississippi fee bill should be prac¬ 
tically adopted.—A. I do not think it would make more than two or tinee thousand dollars 
difference. 

Q. What fee bill do you think you are going to get.—A. I have regulated the charges on 
my fee book by Blackford’s New York fee bill. I will state that a large portion of this 
money has never come into my possession. My district included portions of the three judi¬ 
cial districts of the State; and many of the fees which have been paid into the clerk’s office 
in Mobile I have never received ; and in the clerk’s office at Huntsville, in the northern dis¬ 
trict, there are some four or five thousand dollars which will ultimately come to me when 
these cases are closed ; fees that I have already earned. When Judge Bingham died he had 
in his possession, I think, in the neighborhood of $7,000, which his wife paid into the hands 
of the clerk. I immediately went on with his cases, which were referred to me, kept on 
with them and brought them nearly to a close, when I resigned and my successor was 
appointed. 

Q. Where did you get this $1,000 which you gave to the judge.—A. It was money I had 
in my possession. 

Q. From these bankrupt estates.—A. I cannot tell whether the identical $1,000 which I 
gave was received from bankrupt estates or from other sources. I kept what money I had 
all in one account; I went to my banker and procured two drafts, one for $5,000 and one 
for $1,000. I did not like to leave large deposits in the bank while the troubles in that coun¬ 
try were .going on, and I removed my deposits for the purpose of safety ; taking the two 
drafts I have named ; one of which, the smaller, I designed to give to Judge Busteed, and 
I did give it to him. 

By Mr. Churchill : 

Q. Have none of your cases been completed.—A. None of the cases have been fully com¬ 
pleted. There is a dead-lock there. Nearly all the cases are waiting for the final discharge 
to be granted because the judge has declined to act in any of them while these charges are 
pending against him. I was asked in regard to a letter to Governor Smith ; I have no recol¬ 
lection of ever having written but one letter upon the subject of Judge Busteed; 1 wrote 
one letter to Governor Smith, in which I mentioned the judge; it was written from New 
York or possibly from Wasl iagton, last July or August. In it I stated, in substance, that I 
understood that charges were being preferred against Judge Busteed in order to get rid of 
him ; and I remarked that I thought Judge Busteed was as anxious to get rid of Alabama 
as they could be to get rid of him. 


Washinton, D. G\, January 5, 1869. 

Examination of Hon. George E. Spencer resumed. 

WITNESS. I wish to correct a mistake which I think I made in my examination of yester¬ 
day, in reference to the order for $500 given by Smith. I remember now that I did not give 
it to Judge Busteed, but it was given Mr. Blake, the clerk, by Robert T. Smith, in my 
presence. Judge Busteed had been away, and a long time afterwards he told me he did not 
take it, and would not under the circumstances. 

By Mr. Woodbridge : 

Q. You know nothing in reference to that order except that you saw it given to Blake.— 
A. Nothing else ; this was about the first of last June ; Robert T. Smith came down in the 
cars with me from Opelika to Montgomery; we went to the clerk's office together, and the 
order was then given to Blake. 

Q. At what time of the year was it that you gave this $1,000 check to Judge Busteed 
down at the plantation.—A. The forepart of April or the last of March, 1868. 

Q. At what time was it that Judge Busteed was shot.—A. I think the *28th ot December, 

ISO 7 . , . 

Q. That was previous to your giving him the money.—A. Yes; a few months before. 

Q. What induced you gentlemen to raise this money for Judge Busteed.—A. As I stated 
yesterday, I am not positive whether Burke or myself originated the idea. The inducement 
was the large amount of extra work imposed upon the judge by the passage ot the bankrupt 


44 


law. We thought we had better do it. I wish to say in this connection that I am not cer¬ 
tain whether Day and Burke gave $1,000 or $500. 

Q. Then this present to the judge was not upon the ground that lie had been attacked 
and wounded and put to a large expense by reason of his sickness.—A. That was the imme¬ 
diate occasion of our making the present when we did, but we had previously talked of it. 

Q. Had you determined previously that you would make him this present.—A. As I 
remarked yesterday, we did determine at Huntsville, in November, 1867, that we would 
make him a present. This was done in conversation between Burke, Day, Worrel and 
myself; but we intended to say nothing to the judge about it. 

Q. Did you agree then what the sum should be.—A. No ; I think not. We agreed that 
we would make him a substantial present so as to make his salary a reasonable compensation. 

Q. Have you, or either of these gentlemen, had any suit in which you were interested 
pending before Judge Busteed.—A. I never have had ; and I presume neither of them has had. 

Q. Up to the time when you handed Judge Busteed this check, had you ever had any con¬ 
versation with him respecting what you intended to do.—A. I never had. 

Q. What did Judge Busteed say when he received the check.—A. I cannot repeat what 
he said. I made him a little speech at the time; I think he asked the question whether I 
could afford to be so liberal. I told him I thought, under the circumstances, considering 
the suffering and the expenses he had been to, I could ; I remarked that it was more than I 
had originally intended to have given, when the understanding was had at Huntsville in 
the November previous, but that I had increased the amount on account of his sufferings 
and expenses. ^ 

Q. Was anything said at that time about the money Day and Worrell had paid.—A. I 
think Judge Busteed or Worrel mentioned that the money had been received from Day 
and Burke. I knew the fact, however, having learned it at Huntsville, on my way from 
Washington from Burke and Day themselves. I am not certain whether the amount was 
$500 or $1,000. One of the committee asked me if I ever had any conversation with Judge 
Busteed in reference to the fee bill; and I remarked that I might have spoken incidentally 
with him upon more than one occasion. Since then I have been thinking the matter over, 
arid I am very positive that Judge Busteed and myself never exchanged a word upon the 
subject of fees; I cannot recollect any circumstances in which 1 had any such conversation, 
and I am positive I never had it. Whenever the registers have met we have talked over the 
matter of the fees at large. We sent each other copies of the different charges we were 
making in our fee books ; I also talked with the clerk about the fee bill, but I am confident 
now I never had any conversation with Judge Busteed on the subject. 

By Mr. Semple : 

Q. Did not Judge Chase appoint one Humphreys as the successor of Bingham in the 6th 
district.—A. I understand that he did. 

Q. Did not y 7 ou recommend him for appointment to Judge Chase.—A. I gave him several 
letters of introduction to parties here ; I am not positive whether I gave him one to Judge 
Chase or not; they were complimentary letters, and I was in favor of his having the place. 
He left Alabama for the purpose of going to Washington to obtain the place. I recom¬ 
mended him to go to Mobile and see Judge- Busteed; but he thought he would rather go to 
Washington. I may state in this connection, that my principal object in giving him the let¬ 
ters was for the purpose of inducing him to decline running for circuit judge. He was then 
a candidate for that position. James S. Clark, of Lawrence county, was also a candidate ; 
and I did not desire to have two on the same ticket. 

Q. Did Judge Busteed act upon the nomination of Humphreys.—A. My understanding is 
that he declined to confirm it. 

Q. How soon after Bingham’s death were his petitions referred to you and General 
Burke.—A. I think I received notice that they would be so referred, perhaps, a month or six 
weeks after. 

Q. You know Blake, the clerk you have spoken of.—A. Very well. 

Q. How long has he been in Montgomery since you have exercised the duties of the office 
of register in bankruptcy.—A. Very little. 

Q. Are you certain you have always spoken of this $1,000 as a present.—A. I am certain. 

Q. Have you not spoken of it as a payment for black mail.—A. I think not; I am quite 
positive I have not. 

Q. Did you not, on July 2, 1868, say to Governor William H. Smith, at Montgomery, 
Alabama, that you had been forced to pay $1,000 to Judge Busteed.—A. I said I had given 
money to Judge Busteed, and he knew the fact very well. We had several conversations 
on the subject. I never said I had been forced to pay it; do not think it was July 2. 

Q. You area lawyer, and understand the difference between a gift and a payment.— 
A. Yes, sir. 

Q. And you are certain that you never spoke of it as a payment.—A. I am quite certain ; 
as I said, this was a matter we had frequently conversed about, and Governor Smith under¬ 
stood it perfectly well. If I ever used, casually, the word “payment,” it was with no such 
understanding as you now suggest. Governor Smith understood perfectly well that it was 
a gift. I can repeat my last conversation with him on the subject, if you "desire. 


45 


Q. Did you ever use any language to Governor Smith to the effect that it was given for a 
consideration.—A. Not to the best of my recollection. I am sure I did not. 

Q. Did you ever use any language to Governor Smith, at Montgomery, in the presence 
of D. S. Dalton, in the summer of 1868, to the effect that this was a payment to Judge 
Busteed, or that you were forced to pay it.—A. I have no recollection of any such conversa¬ 
tion. During the conversation with Governor Smith, about the time I was elected United 
States senator, to which I have already testified, when I said to him that I had no objections 
to testify that I had given Judge Busteed $1,000, he called Dalton in. I did not at the time 
know his object. 

Q. When he asked the question, was it in reference to the investigation of this matter 
before Congress.—A. I knew from the newspapers that it was before Congress. Governor 
Smith commenced the conversation about it in this way: said he, “There is a misunder¬ 
standing here, among the people, as to whether you are going to sustain Judge Busteed or 
not.” I said, “ I am not going to sustain anybody. ‘ Every tub must stand on its own 
bottom.’” Governor Smith remarked to me in substance that “ Judge Busteed was bound 
to go up.” I paid, “ Very well; let him go up. I am not responsible for his misdoings.” 

Q. Did not Governor Smith say to you, in that conversation, that he understood you had 
paid $1,000; but that you denied it.—A. His object, as I understood, was to ascertain 
whether I was going to sustain Judge Busteed. If the word “paid ” was used, I did not 
notice it. 

Q. Did he not ask you whether you had denied the statement he had made in reference to 
the present or gift to Judge Busteed.—A. He may have done so. 

Q. Did not you in reply say that you had never denied it—that you had simply said that 
you had not “ corruptly” paid him any money.—A. Very likely that was the remark. 

Q. Did you in that denial define or limit the denial of corruption to yourself, or did you 
repel it from both yourself and Judge Busteed.- A. I intended to include both. 

Q. Did not you tell Governor Smith you were obliged to pay it in order to reap the profits 
of your position —A. I do not think I did. I am very certain I did not. I have often 
talked this matter over with Governor Smith, with his brother John, and with Robert. It 
has been no secret amongst us for months. 

Q. I understood you in your examination yesterday to say that when you made this propo¬ 
sition for a contribution for Judge Busteed’s benefit, and suggested you were willing to 
give $1,000, that General Burke remarked he would give the same amount.—A. The under¬ 
standing was that we were to give alike. 

Q. Was not $1,000 mentioned as the sum you were willing to give.—A. I cannot say. 
The proposition was to give a substantial present. Whether $1,000 was mentioned or not, 
1 do not know. 

Q. Did you not yesterday mention that sum as the one you proposed to give.—A. Very 
likely I did. But I am not sure now that the sum was mentioned. We did not know how 
much our fees were going to be worth. We had the impression that they would probably 
amount to $30,000 or $40,000. We supposed there would be more cases of bankruptcy in 
Alabama than proved to be the fact. 

Q You stated yesterday that you remarked to Mr. Smith that the judge expected a con¬ 
tribution from him; what reason had you for saying that.—A. Because when I gave the 
judge the $1,000 I said I would ask Mr. Smith to make him a present. 

Q. You stated in your explanation this morning that the judge told you he had refused to 
take the money from Smith. When did he tell you that.—A. 1 think in July last. 

Q. Was that after the memorial was presented to Congress for an investigation into Judge 
Busteed’s official conduct—A. I think so. I will tell you the circumstances under which 
that conversation occurred. I asked Judge Busteed if he had ever received the order from 
Smith. Blake immediately said that he had been carrying that order in his pocket for a 
long time ; and took it out and showed it to him. 

Q. Do you know whether John O. D. Smith had any money in the hands of Captain 
Blake, the clerk, at the time the order was given —A. I do not know it as a fact. I take it 
for granted that he had, because when the cases come to be linally adjudicated I suppose 
there will be several thousand dollars coming to me, and I understand the same thing in 
regard to Mr. Smith. 

Q. You say you do not know of any adjudication of the fees of registers in bankruptcy 
in such a manner as to authorize you to draw any specific money out of the clerk’s office as 
vet.—A. There is no such specific order; but there are specific fees to which, by law, regis¬ 
ters are entitled. 

Q. What fee do you, as register in bankruptcy, charge upon each claim presented against 
the estate of the bankrupt. 

(This question was objected to bj r Judge Busteed as irrelevant. Question allowed by the 

committee.) . > , 

A. I always charged, when I got anything, $1 25. According to my interpretation of the 
law, that was within five cents of what I was entitled to. The law allowed 10 cents a folio 
and 25 cents for the affidavit, which, according to my interpretation, would make $1 30. 

Q. Was Judge Busteed in Huntsville at the time of the conversation on the subject of 
this present between yourself, Worrel, Burke, and Day, in that city. A. He was in Hunts¬ 
ville at the time. He was not present during the conversation. 


46 


Q, When you made the judge a little speech upon presenting him with the$l,000 who was 
present.—A. Mr. Worrell was present. I am not sure whether Mr. Stanwood, on whose 
plantation we were staying, was present or not. Jos. Q. Smith may have been present. I 
am not sure. 

By Judge Busteed: 

Q. Did you ever give to Judge Busteed this order of John O. D. Smith, of which you 
speak.—A. I did not. 

Q. Would you know that order if you were to see it again.—A. I would. 

Q. Is the paper now shown you the order.—A. It is the order. It reads as follows : 

“ Opelika, Ala., June 2, 186S. 

“Sir: Please pay to General George E. Spencer $500 out of any money that may be 
deposited with you as fees of the register in bankruptcy for the 3d congressional district of 
the ^tate of Alabama, and much oblige } r ours, &c., 

“JOHN O. D. SMITH, 

“ Register in Bankruptcy. 

“ E. V. Blake, Esq., 

“ Clerk District Couit of the United States, 

“ Middle ristrict of Alabama, Montgomery, Alabama.' 1 ' 

Kobert T. Smith gave this order to Blake, the clerk, in my presence. 

Q. Do you know the handwriting of Jos. W. Burke and L. W. Day.—A. Very well. 

Q. Look at the paper shown you and state the date of the letter, in whose handwriting it 
is, and whose are the signatures.—A. The date is March 30, 1868. The signatures are 
those of J. W. Burke and L. W. Day. I know them to be theirs. The body of the letter 
is in the handwriting of Burke. 

Q. Did Judge Busteed ever, directly or indirectly, ask or suggest, remotely or otherwise, 
that he would like or be glad to receive any present from you.—A. He never did. 

Q. Until the very time you handed him the check for $1,000 had you ever intimated to 
him, remotely or directly, that it was your intention to give him anything.—A. I never have 
to my knowledge. I am certain I have not. 

Q. Has Judge Busteed ever made you any present.—A. Yes, sir. 

Q. Have you heard William H. Smith, the present governor of Alabama, speak of Judge 
Busteed ; and if so, in what terms.—A. I have heard him speak of him often—generally dis¬ 
paragingly. Sometimes he would say he took no interest in the matter. Again, he spoke 
disparagingly. 

Q. Have you given to William H. Smith any money or any presents; if so, when, and 
to what extent.—A. I gave him $50 last winter. 

Q. On the 2d of June, 1868, when the order of John O. D Smith referred to is dated, did 
not Judge Busteed leave Montgomery for the north in company with Mr. Stanwood and his 
family, and did you not go with them from Montgomery.—A. I did to Opelika. 

Q. On this morning, when you were in company with Judge Busteed on the cars, and the 
train stopped at Opelika, did not John O. D. Smith rush into the cars, come up to Judge 
Busteed and shake hands with him very warmly.—A. When the cars stopped at Opelika I 
got out and met Mr. Smith on the platform. I told him you were in the cars. He went in 
with me and treated you, certainly, very cordially. 


Washington, January 6, 1869. 

George E. Spencer recalled and examination continued by Judge Busteed: 

Q. Has William H. Smith written you any letters on the subject of this prosecution by 
Semple and Smith within the last six weeks, and if so, how many.—A. He has written 
me two letters. 

(W ituess produces two letters, which were read by Judge Busteed, and are annexed to the 
witness’s testimony, as fullows : 

“Dear Sir: I wrote you some time ago at New York. I stated to you that I had seen 
Henry C. Semple and conversed with him in relation to Judge Busteed’s case. He said to 
me that it the judge would resign he and Kobert H. Smith will withdraw the charges against 
him, but they will not retract them. I saw Semple again yesterday, when he reiterated the 
same, and also stated that he was anxious to know what to depend upon, as he and Smith 
intend to piosecute unless the judge resigns. That they are in earnest I have no doubt, and 
will leave here very soon for Washington to enter vigorously upon the prosecution. They 
are rich men, and are sustained by other men of means, who intend to spend any amount 
of money that may be necessary in obtaining the services of the best lawyers in the United 
States to conduct the case. 

“It is proper that I should state that I suggested to Semple that if he would withdraw 
the prosecution Judge Busteed might resign, and I found it very difficult to get him to con¬ 
sent, and he told me yesterday that he greatly preferred an investigation, and only consented 
to the course indicated in deference to my wishes. 


47 


1 think you had better urge Busteed to this course, for i the matter is investigated his 
character will leceive a staiu that can never be wiped out. Ot course I feel no interest in 
the matter, and what I said to Semple was only in deference to what I supposed to be your 
wishes. 

“ I hope you will write me immediately, so I may give him an answer. 

; “ Since the election everything is quieting down—everybody declaring for Grant and the 
State government with few exceptions. 

“ I will write fully when I can get time. 

‘‘I am, very respectfully, 


“Hon. George E. Spencer, U. S. Senate .” 


“WM. H. SMITH. 


“Dear SlR: I have just received information from Washington that you had written a 
letter reflecting upon my character in some letter written by you in relation to the Busteed 
matter. I cannot believe it until I have positive evidence that it is so. 

“ I believed that Judge Busteed’s conduct as a judge was a disgrace to the high position 
lie occupies and should be investigated, and so thinking, I repeated what you told me that 
justice may be done. It is said you now deny what I have repeated. If so, it makes a case 
of personal veracity between you and me, and I shall certainly not back down from any¬ 
thing I have said, and I will prove by various other persons that you told them the same 
thing, and I will also furnish written evidence tending to prove the truth of what I have 
said. I dislike very much to think of having to engage in a personal matter with an old 
personal friend, but you may be assured that I will vindicate my character let it cost what it 
may. Hoping that I have been misinformed, I await with nnrch anxiety your reply. 

“I am, very respectfully, 

“WILLIAM H. SMITH. 

“Hon. George E. Spencer.’ 

Q. Is the letter that is dated 12th December, 1868, in the handwriting of William H. 
Smith.—A. Yes, sir; the whole of it. 

Q. Is the other letter in his handwriting.—A. I think that only the signature is ; the letter 
is not his handwriting, I think ; it may be that all of it is, but I think not. 

Q. When did the dateless letter come to you; was it before or after the one dated Decem¬ 
ber 12. 1868.—A. It came after the other; it came to me during the Christmas holidays, 
after Congress had adjourned. 

Q. Did you answer these letters.—A. I answered the first one. 

Q. Do you recollect the substance of your answer.—A. I wrote him to the effect that you 
desired an investigation, and were willing that an investigation should proceed ; (that is the 
substance and (‘fleet of what I "wrote him ) I think I wrote also that it was and had been 
your intention, so expressed to me, to resign, but that you should not resign while these 
charges were pending. 

Q. Have you ever in any conversation with me directly or indirectly intimated to me what 
you were charging for your services as a register in bankruptcy.—A. I never have. 

Q. Have I ever had, directly or indirectly, any conversation with you on the subject of 
what you were charging. — A. I think not; I am positive you never had. 

Q. Do you know the handwriting of Mr. Burke.—A. Yes. 

Q. Look at the paper now shown to j'ou and see whether that is in his handwriting.—A. 
It is; the letter and signature are both in his handwriting. 

(Judge Busteed offered the letter in evidence, but the committee declined to receive it.) 

Q. Do you know a Dr. J. Y. Cantwell.—Q. I do. 

Q. Dr. J. Y. Cantwell, of Dekato, Alabama—A. I do. 

Q. Are you acquainted with his handwriting.—A. I am. 

Q. Look at a letter, now shown you, addressed to Mr. Worrell, dated January 30, 1868, 
and state whether it is in the handwriting of J. Y. Cantwell, oT Dekato, Alabama.—A. I am 
quite certain it is. 

By Mr. Semple : 

Q. Have you ever, befoie you received the letter from Governor Smith, told him that you 
knew that Judge Busteed was anxious to resign, and would resign if the charges were with¬ 
drawn —A. I tola him, in substance, that several times. 

Q. Did you tell him that with a view of obtaining his action and procuring a withdrawal 
of the charges.—A. I said to him several times, and, in fact, I wrote a letter to him once, 
stating, in substance, that if it was the object of the prosecutors of Judge Busteed simply 
to get rid of him, there was a much quicker way of proceeding than by pushing this investi¬ 
gation ; that Judge Busteed was anxious to leave the State, and did not wish to come back 
again. 

Q. Had you seen Judge Busteed after the charges were preferred in Congress and before: 
you told of this to Governor Smith.—A. 1 told Governor Smith that when I first heard of 
the charges 1 told him that if the charges were out of the way Judge Busteed would resign. 

Q. And the charges were then pending.—A. They were then pending. 

(). Did you not tell John C. Keefer, in Montgomery, that if he would endeavor to procure 


48 


a withdrawal of the charges you would procure the resignation of Judge Busteed.—A. I 
said, in substance, to him what I said to Governor Smith. I wish to remark, in this con¬ 
nection, that when Judge Busteed left Alabama, about the 1st of June last, those charges 
were not preferred, and that the judge then told me he never intended to return to the State. 

Q. You say you never had any conversation with Judge Busteed on the subject of fees ; 
am I to understand you as saying that the conversation which you detailed yesterday in re¬ 
lation to the Mississippi fee bill between you and the judge never took place.—A. I am cer¬ 
tain that I never had such a conversation. 

Q. As the one which you detailed in your first examination.—A. I am certain of that; I 
corrected that yesterday. 

By Mr. Eldridge: 

Q. What particular remark of yours do you now refer to —A. In your examination of me 
you asked me if I had ever conversed with Judge Busteed in relation to fees, and I answered 
you that I might have done so incidentally. 

Mr. Eldridge. Your answer was that you had done so. 

Witness. But, on reflection, I am certain that I never did. 

By Mr. Woodbridge: 

Q. Were you authorized by Judge Busteed to have this communication with Governor 
Smith, and to communicate to him the fact that Judge Busteed would resign in case those 
charges were withdrawn.—A. I conversed with Judge Busteed in New York, last July or 
August, on the subject, and Judge Busteed said to me, “ You are well aware that these 
charges detain me in office; that I do not wish to hold the office any longer, and that I have 
long since made up my mind to vacate it;” and I stated to him what I had already said to 
Governor Smith at Montgomery. 

Q. Before you had any communication with Governor Smith on the subject, had you sug¬ 
gested to Judge Busteed that you intended to have such communication—A. I talked to 
Governor Smith before I had ever spoken to Judge Busteed, and I afterwards spoke to Judge 
Busteed. 

By Mr. Eldridge : 

Q. In your examination the other day you stated, in answer to my question, that you had 
said to the judge on two occasions that you trusted or hoped he would not be hard on you 
about the tees, and that he said he would endeavor to be reasonable.—A. That probably 
was my answer, but since then I am satisfied that that was a mistake, and that I never had 
such a conversation. 

Q. Did the judge say to you in any conversation that he did not think you would ever 
complain about the fees.—A. I think I never had a word of conversation with Judge Bus¬ 
teed on the subject of tees ; I am positive of it; I talked with other registers and clerks, and 
with Mr. Worrell. 

Q. Did not the judge say to you that you would have no occasion to complain about his 
taxing the tees.—A. I do not think he did; I think I was entirely mistaken about that. 

Q. How should such an idea as that have got into your head.—A. The subject of fees 
had been a common conversation between the registers, and you asked me the questions very 
rapidly and in rapid succession; I did not intend then to swear, nothing more than that I 
might have had such conversation. 

Q. Did you have no such conversation as that with any friend of Judge Busteed. — A. I 
have often talked with the registers and with Mr. Worrell about it. 

Q. Is it not possible that you had such conversation with Judge Busteed’s son-in-law.— 
A. I think it very likely that I had that conversation with Mr. Worrell, and I know that I 
have often talked with Judge Busteed’s son-in-law, Captain Blake, in reference to fees; he 
is the clerk of the middle district. 

Q- Idid you have such conversation with Captain Blake.—A. I have no doubt in the 
world but I have had ; still "I am not positive about it. 

Q. Have you never talked with the judge at all about fees.—A. I never talked with him 
about tees. 

Q 1 -R'J y° u uot tell the juoge that it he adopted the Mississippi fee bill it would make a 
great difference with .you. A. I never said anything of the kind to the judge ; I am certain 
I never conversed with him on the subject. 

Q. What has letreshed your recollection on the subject.—A. I have been thinking over 
the matter. J * 

Q. Have you been talking with Judge Busteed.—A. He asked me the questions as to 
when and where and in what connection I had talked with him. 

Q. Has he refreshed your recollection on the subject.—A. He has not refreshed my recol¬ 
lection. J 

Q. Has the conversation with the judge refreshed your recollection.—A. It has not. 

C^. Has he changed your recollection on the subject.—A. I was not aware when I 
answered your questions that I was answering them in the way you say; you asked them 
very rapidly. J J J 0 

Q. Did 1 not iepeat these questions over several times and in different forms.—A. I am 
certain now, and I swear positively', that I never did have such a conversation. 


49 


Q. Has your conversation with Judge Busteed since you gave this testimony caused 
you to change your recollection or opinion.—A. I think not; the judge asked me after the 
examination was over when and where I had this conversation with him. 

Q. Wher^did you meet the judge.—A. We walked part of the way down the avenue. 

Q. Did you change your recollection at once on the subject.—A. I did not; but since then 
I have been thinking the matter over. 

Q. When did you first make up your mind that you had no conversation with Judge Bus- 
teed on the subject ot fees.—A. Yesterday morning; I endeavored to recall to my miud the 
substance of all the conversation I ever had with the judge. 

Q At the time the judge said you were very liberal to him, was there anything said about 
fees.—A. No, sir. 

Q. The judge said, when you handed him this letter, that it was very liberal.—A. Yes ; he 
said it was a very liberal donation. 

Q. Was not that the occasion when you said to the judge that he must not be hard on you 
about the fees.—A. I am positive I never said so. 

Q. How is it possible that you made such a mistake as to attribute that conversation to the 
judge. —A. It is a subject which I had not thought of before, and I did not intend to say that 
I had such conversation, but that I might, on one or two occasions have made such a remark. 

I am willing to swear that., to the best of my memory and belief, and I am positive about it, 

I never did have that conversation. That is the evidence I wish to give. I endeavored to 
recall all the conversations I ever had on the subject, and I am certain that the subject of 
fees had never troubled me any. I never really had any idea that the judge w’ould adopt the 
Mississippi fee bill. 

Q Did you not talk with him about the difference between the two fee bills.—A. I am 
certain that I never did. 

Q. All the conversation that you had on that subject was with Mr. Blake and with other 
registers.—A. Not all; I have talked with law r yersand with a good many people about it. 

Q. Can you state in distinct the conversation you had with Captain Blake on that subject — 
A. I cannot go into details, or state distinctly the conversation. 

Q. Can you state the person with whom you had the conversation which you attributed to 
the judge.—A. I did state that; I thought it was with Mr. Worrell. 

Q Do you recollect of any two distinct conversations that you had with Worrell in which 
such language may have been used.—A. I remember more than two instances that I conversed 
with him on the subject of fee bills; in fact we never met during that time without talking 
about fees. 

Q. Then you have in your mind no two distinct conversations that may have been the con¬ 
versations which you think you had with the judge.—A. I have not; I did not intend to 
swear the other day that I had two conversations. The answer which I intended, and which 
I supposed I was giving, was that I might incidentally have had those conversations, but 
since then I have been thinking over the subject, and I am certain I never had. 

By Mr. Churchill : 

Q. Was it at Huntsville, in November, 1867, that the subject of a present to Judge Busteed 
was first mentioned.—A. The first time it was ever mentioned was at Eutaw, Alabama, I 
think probably in September or August, 1867, at a republican mass meeting ; the conversa¬ 
tion then wns between John C. Keefer and myself; no other persons were present; Keefer 
was then register in bankruptcy from the Montgomery district. 

Q. What was said about it at that time.—A. 1 think that Keefer and I discussed the pro¬ 
priety of some time or other making Judge Busteed a present. 

Q. Was the subject of your fees spoken of at the same time.—A. I cannot tell what was 
spoken of at that time ; we had been both making speeches, and had retired to our room to 
go to bed, and we talked nearly all the night. 

Q. Can you state whether or not the subject of your fees and the uncertainty of the 
amount was a subject of mention at that time between yourself and Mr. Keefer.—A. I can¬ 
not state either way; I do not know that Keefer had been confirmed at that time, but I think 
he had been. I think Keefer said, “ We had better make Dick a nice present.” 

Q. What reason, if any, was assigned at that time why a present should be made to the 
judge. — A. I do not recollect, and I am not very positive that the subject was brought up. 
I think that w T as the first time it was mentioned. We met there accidentally at the time ; 
I was holding the bankrupt court there, amd Keefer came to make a speech at the mass 
meeting. 

Q. Who were present when the matter was talked over at Huntsville.—A. Mr. Worrell, 
Mr. Burke, Mr. Day, and myself; that was the first time the subject was ever mentioned 
officially. 

Q. Was the subject of your fees discussed at that time.—A. Yes ; we compared notes as 
to the fees which we should charge. 

Q. Was the matter talked over at that time as to the uncertainty of the amount that might 
be allowed eventually by the court.—A. No, I think not; it it was, it was very remote, 
indeed ; but I think not. We prepared at that time a list of rules for registers in bankruptcy, 
which were submitted-to the judge, aud the judge agreed to them substantially and made 
them an order of court. 


50 


Q. Was the subject of this present mentioned by you, or by any one of those who were 
present, to Captain Blake before the present was made to Judge Busteed.—A. I never met 
Captain Blake at all until after I had made the present to Judge Busteed. 

Q. Do you know whether or not, at the time the $500 order was given to Caftain Blake, 
any references had been made to him of cases in bankruptcy after the writing ot the letter 
by Storer which has been spoken of.—A. I received a letter from Mr. Smith, stating that 
petitions were not being referred to him, and giving me the substance of a letter which he 
had received from Mr. Storer, the deputy clerk. I went to Montgomery and saw Judge 
Busteed in relation to it; he told me he knew nothing about it, and he also told me to say 
to Mr. Storer not to do that any more, but to refer those petitions immediately. This was 
two months, at least, previous to the giving of the $500 order. 

Q. After that conversation with the judge petitions were referred to you as usual.—A. 
They were. 

Q. Do you know whether or not they were referred to Mr. Smith as usual.—A. I think 
they were. I heard no complaint after that. On the 1st of June there were a good many 
petitions referred on the docket to Mr. Worrell which should have been referred to me and 
to Smith ; I spoke to Blake about it, who said he did not know anything about it. The 
letter of Storer that was referred to was signed by him in Mr. Blake’s name, but he wrote it, 
and he was held really responsible for everything that was done; I did not know Blake at 
that time. 

By Mr. Semple : 

Q. Have you ever practiced law in Alabama before your confirmation as register.—A. I 
have somewhat. 

Q. Had Mr. Keefer ever done so.—A. I cannot tell. 

Q. Had Mr. Bingham ever done so.—A. I really do not know. 

Q. Had Captain Blake ever done so.—A. I cannot tell. 

Q. Do you know whether Keefer, Bingham, and Blake are lawyers.—A. I only know 
from hearsay. 

Washington, D. C., January 7, 1869. 

Abraham Martin sworn and examined. 

By Mr. Semple : 

Question. Proceed to give to the committee a statement of any facts within your knowledge 
tending to illustrate the charges against Judge Busteed.—Answer. I was counsel for one of 
the defendants in the case of Nickerson against Smith Cullurn, George Holmes, and William 
Knox. That case, accordmg to my recollection, was brought by the plaintiff against the 
defendants for money alleged to have been collected by the defendants upon the deposit 
of a note with them as bankers for collection. The defendants did not deny that they had 
collected the money; but, according to my recollection, they insisted that they were not 
chargeable with interest. A long time had intervened between the collection of the money 
and the demand for the money ; I am not so sure but that the defendants also insisted that 
the money had been collected in confederate currency, and that they were only chargeable 
with that. In the progress of the suit Judge Busteed directed the jury that they should not 
find against Mr. Knox, a copartner of the firm of Smith Cullurn & Co. Their liability, 
as appeared before the court, was precisely the same; there were no circumstances whatever 
to show that Knox was not equally liable with the other parties; Judge Busteed, however, 
directed the jury not to find a verdict against Knox, but to find a verdict against the other 
defendants, and that was done. 

By Mr. Eldridge : 

Q. Can you repeat the language of his charge in that particular.—A. No, sir; I cannot. 

By Mr. Churchill : 

Q. Was issue raised by the pleading whether the defendant (Knox) was a member of the 
firm.—A. None, whatever; there was no plea interposing any special defence by Knox. 

By Mr. Eldridge: 

Q. What was the plea.—A. I do not recollect; I think it was non assumpsit. 

By Mr. Churchill : 

Q. In which the defendants all joined.—A. They all joined in that defence. 

By Mr. Eldridge : 

Q. There was the one plea by all of them.—A. The same defence was made by all the 
parties. Judge Rice and myself were defending in the case. Judge Rice took the princi¬ 
pal lead in the defence; I do not think I made any speech at all in the case; I was an asso¬ 
ciate with Judge Rice. 

Q. Was any point made by the defendants’ counsel upon which they claimed that Knox 
could not be held responsible.—A. None, whatever; there was no defence for Knox other 
than for the other defendants. 


51 


Q. Do you mean to say that that suggestion first came from the judge in his charge._A. 

It came from the judge exclusively, and from nobody else; no interposition of a special de¬ 
fence for Knox was made; the defence that was made applied to all alike equally. 

By Mr. Churchill : 

Q Neither in the pleading, nor in the evidence, nor in the argument of counsel.—A. 
Neither in the pleading, nor in the evidence, nor in the argument of counsel. 


By Mr. Eldridge : 

Q. Who is this man Knox.—A. He is a gentleman of the city of Montgomery—an old 
resident, at that time residing in Montgomery, and in whose house Judge Busteed was stay¬ 
ing at the time; his name is William Knox. 

Q When was that trial.—A. I do not recollect the time precisely; I think it was the first 
regular term of the court that Judge Busteed held in Montgomery, but I am not certain as 
to that. 

Q. W ho were those other parties, Holmes & Cullum.—A. They were bankers, copartners 
with Mr. Knox. 

Q. Were they responsible parties.—A. Very responsible parties, all of them; they were 
considered so at that time; Smith Cullum and George Holmes were unquestionably so. 

Q. Was Knox also responsible.—A. He was considered at that time responsible ; such 
was my view of his solvency. He had been regarded as a very wqalthy man, and was presi¬ 
dent of the Central Bank of Alabama. 

t Q- Who appeared tor the plaintiff in that case.—A. Mr. J. D. Holtzclaw and Governor 
W atts ; the defendants appeared by Judge Rice and myself. Our defence was the same, and 
whatever defence was offered for one applied to the whole. 

Q. W r ere you as much employed by the one as by the others.—A. I was the general at¬ 
torney for Cullum, and as such I appeared in the case for all the parties. 

Q. Did you and Judge Rice appear any more for one of the defendants than for another.— 
A. I was not spoken to by Knox in the case, but I was general attorney for Smith Cullum 
& Co., and as such I appeared for all the parties. Judge Rice, I am inclined to think, ap¬ 
peared solely for Mr. Knox; but in the course of the defence he made no distinction what¬ 
ever as to the parties for whom be appeared ; the defence was general. 


By Mr. Churchill : 

Q. Do you recollect how you stood upon the record.—A. I think our names were simply 
put down upon the docket as attorneys for the defendants, without discriminating for which. 

Q. Had the firm of Smith Cullum & Co. been dissolved before the action was brought.— 
A. They w'ere not doing business at that time, but I never heard of any formal dissolution. 

By Mr. Eldridge : 

Q. Were they conducting the banking business at the time—A. I think not; I am pretty 
sure they were not; Cullum had at that time removed from Montgomery to Mobile. 

Q. Were they conducting the business under a bank charter, or as copartners.—A. As 
copartners ; they were doing the business of exchange, and they called themselves bankers ; 
I do not think that any charter was ever granted to them to do bauking business ; it was a 
private association. 

By Mr. Shmple: 

Q. Was Mr. Knox an Irishman.—A. He was. 

Q. Was Mr. Knox residing in the finest house in the city.—A. He was residing in a fine 
house. 


By Judge Busteed : 

Q. Not the finest.—A. I do not know that it was the finest; it was a fine housej 
By Mr. Eldridge : 

Q. Was Mr. Knox present in the court while the trial was proceeding.—A. I do not recol¬ 
lect that he was ; I think he was not. 

Q. Was he home during the time.—A. He was in the city, I think; that is my recol¬ 
lection. 

Q. Was Judge Busteed spending his time there while holding court in Montgomery, or 
was he merely at his house on a visit.—A. He boarded in his house, as I understood ; I did 
not see him there, but I recollect distinctly hearing Judge Busteed himself say that he was 
staying there, and I know the fact from the inmates of the house, particularly from Mrs. 
Knox. 

Q. How long did he remain there.—A. During the term of the court.. 

Q. Do you recollect how long that was.—A. I think it was about two weeks ; if not all 
the term, it was chiefly all the term. 

By Mr. Semple : 

Q. What do you mean by the word “boarded.”—A. I mean that he was there as an 
invited guest. 


52 


By Mr. Eldridge : 

Q. Did the jury render the verdict that he directed.—A. It did. 

Q. Did the jury leave the box to go into a jury-room.—A. I think it did. 

By Judge Busteed : 

Q. Do you know whether those persons were sued as partners, or not.—A. I think they 
were sued as partners. 

Q. Can you state, from your recollection, a single allegation in the pleading.—A. I have 
no distinct recollection of the allegations in the pleading ; my general recollection is- 

Judge Busteed. I do not ask your general recollection. 

The Witness. My recollection is that it was a common action of assumpsit against the 
parties, and against them as copartners. 

Q. Do you not recollect that the judge charged the jury that there was no testimony in 
the case connecting Mr. Knox as a copartner, and that upon that ground he directed the 
jury that it could not find against Knox.—A. I have no recollection of it; there was no 
defence of that sort interposed. 

Q. Will you swear that that direction was not given to the jury.—A. I do not think it was. 

Q. Will you swear it.—A. What I say I say as swearing it; I do not think that such 
charge was given ; it possibly might have been, but I have no recollection of it. 

Q. Do you recollect whether or not such a charge was given to the jury—that there was 
no proof connecting Mr. Knox with the firm as a copartner, and that upon that ground the 
jury must find for Mr. Knox. Have you no recollection of it at all, one way or other.—A. 
I have no distinct recollection of your charge in that respect, but I am satisfied of another 
fact- 

Q. Wait till I inquire about the fact. Was there any exception taken to the charge of the 
judge by the attorneys for the plaintiff.—A. There was not, and I can give you the reasons 
assigned to me by Governor Watts why there was not. 

Q. I do not want you to state any reason assigned to you ; I am asking for the simple 
fact, whether there was any exception taken by the counsel for the plaintiff.—A. There was 
not. 

By Mr. Churchill : 

Q. What was the reason assigned by Governor Watts.—A. Governor Watts said that he 
knew the other defendants were personally responsible, and that he did not care whether 
any verdict was given against Knox. 

By Judge Busteed: 

Q. Was that said in the court.—A. No. sir; but in commenting upon the extraordinary 
charge he gave that as a reason why no exception was taken to it. 

By Mr. Eldridge : 

Q. Would there not be error in the record upon a judgment rendered upon a verdict of that 
kind.—A. Yes, sir ; upon exception being taken. 

Q. Was it necessary to have exception taken.—A. It was necessary; but it w r as a judg¬ 
ment under $2,000, and no appeal would have lain, as I understand the law, from the judg¬ 
ment of Judge Busteed to the Supreme Court; and if an appeal had been taken to the circuit 
court it w'onld have been taken to Judge Busteed himself. 

Q. Is there any law' or statute in your State authorizing a judgment against one of three 
copartners w'here an allegation is against them as copartners.—A. That is the practice, I am 
satisfied ; you can take judgment against all or any one of them. 

Q. Where the declaration is against them as copartners.—A. Where the declaration is 
against them all; we have a practice in the State authorizing a discontinuance, at the 
pleasure of the plaintiff, of any part of the suit. 

Q. And that relates to copartners.—A. It relates to all parties to the suit. 

By Mr. Churchill : 

Q. At any stage of the case.—A. At any stage of the case. That is the law in Alabama. 

By Judge Busteed : 

Q. Do you know that there is no circuit judge for the middle district of Alabama, and that 
appeals must be taken directly in that district into the Supreme Court of the United States.— 
A. I understood that there w'as then, and I think that there is now, no circuit judge in that 
district. 

Q. Do you not know that by the constitution of the court there is no circuit judge for the 
middle district of the State of Alabama —A. I do not know that fact: but, on the contrary, 
I have known circuit judges to preside in that court. 

Q. You say that Mr. Knox was accredited a rich man at that time.—A. I think he was at 
that time. 

Q. Do you know anything about it.—A. I know that he w'as accredited as a man of wealth 
at that time. 

Q. In December, I860.—A. I think he was. I know that with many persons he was so 
accredited. I regarded him as a man of wealth. 




53 


. Q- Did you personally know anything about his pecuniary position.—A. I did not. He 
lived there many years and had the character of a man of wealth. 

Q. Did the persons with whom he stayed accredit him as a rich man—persons who knew 
anything of his circumstances in 1866.—A. I cannot say that they did. 

By Mr. Semple : 

Q. Do you know whether the judgment of Judge Busteed, rendered in that case, resulted 
in Holmes & Cullum having to pay the whole of the debt.—A. It did. I paid it myself for 
Cullum. He furnished me with the funds and I paid it. 

Q. Do you know whether Knox ever accounted to him for any part of it.—A. I do not. 

By Mr. Eldridge : 

Q. Would not an action lie by them against him for having paid it.—A. An action would 
have lain. 

Q. Notwithstanding the judgment of the court.—A. I have no question but that an action 
would have lain in their favor against Knox. I have no doubt about it. 

By Mr. Semple : 

Q. Did Mr. Knox shortly after that become insolvent, or was his insolvency disclosed 
shortly after that.—A. A considerable time after that period. 

By Mr. Eldridge : 

Q. Did you yourself know of property in his possession at that time.—A. There was large 
property in his possession at that time. I think the house he lived in had been settled by 
him on his wife anterior to that period. 

Q. Of what property did you know of his being in possession.—A. There was other prop¬ 
erty, but perhaps it was in the same condition as the house. He had property in town- 
buildings. He had some property also in an adjoining county—a small residence. How 
that stood I do not know. He resided there in the summer, and it was spoken of as the 
summer residence of Mr. Knox. 

By Mr. Churchill : 

Q. Do you recollect how the partnership of the defendants was shown on the trial.—A. It 
was not questioned at all. 

Q. Was it shown by evidence, or by admission of the defendants or their counsel.—A. 
They were declared against as copartners, and no objection was made to the allegation. No 
interposition of want of partnership was made by Knox. 

Q. If the general issue was interposed, I suppose that put in issue the partnership of the 
defendants, so that it was necessary that in some way the partnership should be established ; 
was that established by the admission of the defendants or their counsel, or was it established 
by evidence.—A. I think there was proof of the members of the copartnership. 

Q. Did the plaintiff give evidence to show who composed the firm.—A. I think that was 
the evidence. 

Q. Did that evidence extend equally to the three defendants.—A. It was the same in 
reference to all. There was no discrepancy in reference to the liability of either party. * 

By Mr. Eldridge: 

Q. Have you knowledge of any other facts bearing upon this case.—A. Yes, sir. I was 
present at the trial of Martin & Gaydon against Rose Morgan, administratrix of James 
Morgan. I recollect that the plea of ne unques administratrix was interposed, and overruled 
by Judge Busteed. The defence set up by Judge Chilton under that plea was ruled by 
Judge Busteed not to be admissible, and that he could not avail himself of that plea. 

Q. What did he refuse to allow to be proved under it.—A. That plea was read and ruled 
upon, and no proof was interposed by Mr. Smith, who managed the case for the plaintiffs, 
to show that the defendant was the administratrix. It was set out in the declaration that 
she was the administratrix of James Morgan, and one of the defences was that she was not. 

By Mr. Woodhridge : 

Q Was there any replication to that plea.—A. I do not know. Our practice is loose, and 
sometimes we do not follow up the order of pleading. According to our rules of practice 
the plaintiff should' have replied, but oftentimes it is not required formally by attorneys in 
the pleading. 

By Mr. Eldridge: 

Q. What was the objection made in the case.—A. The objection was that she was not the 
administratrix and not responsible. 

Q. What was the answer to that.—A. The answer to it was that she must make the proof 
of that fact, and show' that she w r as not the administratrix. 

Q. Throwing the burden of proof upon her.—A. Yes. 

Q. Was that so ruled by the judge.—A. That was so ruled by the judge. 

Q. Did he rule that, the allegation having been made in the delaratiou that she was the 
administratrix, and it having been denied in the plea, the onus devolved upon her to show 


54 


that she was not.—A. He did not say so in those words, but he did rule that it was incum¬ 
bent upon the defendant to prove she was not the administratrix. 

Q. Was it claimed by any one, or stated by the judge, that it was not necessary to prove 
it because there was no replication.—A. No, sir; nothing of that sort was said. 1 he dis¬ 
tinct fact was stated that it was incumbent upon her to sustain the truth of the plea. 

By Mr. Churchill : 

Q. Do you recollect what other pleas were interposed by the defendants.—A. No, sir. I 
w r as not in the case myself, but that ruling struck my attention. 

Q. Do you recollect whether any of the pleas of the defendant were such that, if no plea 
of ne unques administratrix had been interposed, the administratorship would have been 
established by the pleading.—A. I think there were other pleas which, uucuntradicted by 
that plea, might have led to an admission of the liability as administratrix. 

By Mr. Semple : 

Q. When a complaint is filed alleging that the plaintiff proceeds against the defendant as 
administratrix, and when the defendant pleads that she is not the administratrix in answer 
to the complaint, and puts herself upon the contrary, whose duty is it then, if there is no 
necessity for getting a formal issue, to take the next step.—A. By our rules the duty would 
have devolved upon the plaintiff. 

Q. Is not that the rule of the common law\—A. I think so. 

By Mr. Eldridge: 

Q. This special plea would stand upon the record confessed if it w r as not replied to.— 
A. According to our rules, and according, I think, to the frequent determinations of the 
Supreme Court, when the trial proceeds in the absence of a replication in the record, the 
court above infers that the rejoinder was interposed. 

By Judge Busteed : 

Q. What w r as the amount involved in that judgment of Martin & Gaydon against Morgan. — 
A. I do not know anything about the amount in that case. 

Q. You were busy in court attending to your own business.—A. When I had occasion to 
be so, I was. 

Q. When you were present upon this occasion what were you doing.—A. I was observing 
the progress of the trial. 

Q. Had you any business in court.—A. None pending. 

Q. Had you any upon the docket.—A. I think I had. 

Q. More cases than one.—A. I think so. * 

Q. Were you thefle attending to those cases, or to the cases of your brother.—A. I was 
attending to my own cases, and looking on generally. 

Q. Did you take more interest in your own cases than you did in others.—A. I did. 

Q. How do you come to recollect about this plea of ne unques administratrix in the case of Mor¬ 
gan.—A. I heard Judge Chilton speak of it before the trial came on, aud in the progress of 
the trial the extraordinary course (as I regarded it) of the judge attracted my attention. 

Q. You regarded that as very extraordinary.—A. I did. 

Q. And very wicked.—A. No; I did not know it was wicked at that time; I regarded it 
as extraordinary. I may have been in error, and I do not say I was not in error. 

Q. How often have you talked with Henry C. Semple as to what you swore to in this case.— 
A. We have talked several times about it, but I do not know that we have ever spoken in 
detail as to what I*would swear. 

Q. How does it come that you have marked upon this set of charges several things to which 
you can swear, while Semple put your name down to but one specification of the charges.— 
A. Mr. Semple told me that he would just ask me, as I was acquainted with the specifications, 
to go on and detail the facts of which I had an acquaintance; I then rau over a copy of the 
charges and made a cross-mark opposite the parts of the specifications with which I had 
acquaintance. 

Q. I think I understand you to say that your practice was very loose down there.—A. I 
said that our practice was loose; I do not mean so particularly in your court as in the courts 
of the State. 

Q. Do you not know that I very frequently said to the bar, from the bench of the middle 
district, that the attempt of the code of Alabama to engraft the common law practice with the 
practice under the code made it exceedingly incongruous aud difficult for me to understand; 
aud d'oes not your code, in fact, allow you to adopt either common law pleading or pleading 
under the code, and to incorporate both together in the same record.—A. It is a fact that the 
code adopts a mode of pleading; but nevertheless parties may, if they see proper, follow the 
common law mode of pleading. 

Q. And they may use both, may they not, in the same record.—A. I think they may; I 
think they may file a declaration under the code, and may file special counts as at the com¬ 
mon law. 

By Mr. Semple : 

Q. Proceed to state anything else you know in the matter.—A. I was present at the trial 
of the suit of Harper against Graves and others. I recollect in that case that Graves was in 


55 


i 

possession of the property, and it was offered to be shown that he was there as the tenant of 
Mrs. Gale ; that the property had belonged to Mat. Gale, her husband ; that Mat. Gale was 
dead, and that she was entitled to possession; and a motion was made to allow her to be made 
a defendant, (the practice in Alabama being to allow the landlord to be made a defendant.) 
That motion was overruled. I recollect furthermore that the defence was insisted upon that, 
she being entitled to the mansion house and to her dowry in the real estate, until her dowry 
was assigned she was entitled to keep the possession, and that rule of law was insisted upon 
before the court, all of which was overruled. 

By Mr. Churchill : 

Q. Do you recollect whether the application was that the landlord should be sustained as 
defendant in the case, or that she should be added as a defendant.—A. I am not certain as 
to that; but by the law of Alabama the landlord has a right to be made a party. 

Q. An additional party, or the party to the exclusion of the tenants.—A. I think the term 
of the statute is that he shall be made a party, and I would infer that he may be added. 

By Mr. Semple : 

Q. Do you recollect whether any announcement was made to the jury, previously to the 
charge by the judge, in reference to what he would do if the jury did not find a verdict in 
accordance with the charge.—A. No, sir; I do not recollect that. I was not at the trial 
during the whole progress of the case. 

Q. Was the Mat. Gale who was the defendant in the original suit in which judgment was 
rendered, dead at the trial of this suit.—A. He was. 

Q. And any other Mat. Gale who was mentioned must have been a different person, I sup¬ 
pose.—A. He had a son of the name of Mat. Gale ; I think he was then, and still is, living. 
He had a son who died in the army, but I think it was another son. 

By Judge Busteed : 

Q. Were you attorney of record or counsel of either party in that case.—A. I think not; I 
am not certain; but I may have been. I did not take any active part before the court upon 
the trial of the case, but I think I consulted with Governor Watts in the progress of the trial. 

By Mr. Woodbridge : 

Q. What was there, if anything, during the trial of these cases to which you have referred, 
and in the decisions rendered by the judge, that led you to believe that he was influenced by 
an improper or corrupt motive.—A. In the case of Nickerson against Smith, Cullum & Co., 
I did think he could have been influenced by no other than a mere arbitrary or corrupt design. 
I thought tiiat in the case of Martin against Morgan his denying to the defendant the benefit 
of the plea of ne ungues administratrix was either attributable to a want of knowledge of the 
effect of the plea or to an improper motive. 

By Mr. Eldridge : 

Q. You thought it was either ignorance of law or an improper motive.—A. Yes, sir. 

By Mr. Woodbridge: 

Q. Was there anything peculiar in the conduct of Judge Busteed in the trial of those cases 
different from that which he exhibited in trials generally.—A. No, sir ; I cannot say that there 
was. 

Q. Was Judge Busteed, while he was on the bench in Alabama, outspoken in reference to 
his political views.—A. Not in court, I think. 

Q. Out of court.—A. I had very little to do with Judge Busteed out of court. 

Q. Was he understood to be an ardent republican.—A. I think so. 

Q. Was he understood to be in sympathy with the measures of Congress in relation to 
what is called reconstruction.—A. I think so. 

Q. Was the bar generally, in the State of Alabama, composed of men who had sympathized 
with the rebellion.—A. Generally. 

Q. Had many of them been active in supporting what was called the confederate govern¬ 
ment.—A. I think so; generally. 

Q. Was there not a great prejudice existing in the minds of your people generally, and of 
the bar also, towards a man who was an ardent supporter of the republican doctrine and of 
the measures of Congress.—A. No, sir; our opinions and theirs were in opposition, but we 
made no objection to the man himself upon that ground. 

Q. Was it at that time sale for a citizen of the United States, or in fact any citizens, to go 
into the State of Alabama and, in public speeches and in private intercourse, stand up tor 
what they deemed to be right, if they were in favor of the measures of Congress.—A. If any 
man had come to Alabama at that period and expressed his views, however positive or cer¬ 
tain, in any manner respectful to the people, there would have been no sort of objection taken 
to him. 

Q. Could a man at that time, in the city of Mobile or in the city nf Montgomery, have 
advertised that he would address the people upon a political subject and have made a speech 
strongly in favor of the republican doctrines and of the reconstruction measures with satety.— 
A. With perfect safety, I think ; and I think that such things were done. 


56 


Q. Was there, or not, a strong prejudice in the minds of your educated and prominent 
men against people from the north who did utter those sentiments and did take an active part 
iu promulgating them there.—A. There was a strong opposition of views towards those who 
might take that course, but it did not extend, so far as I am advised, to any particular mat¬ 
ter between the parties, except in very few cases. 

By Mr. Eldridge : 

Q. Has tire- testimony that you have given before this committee been influenced by any 
feeling such as that suggested by Mr. Woodbridge.—A. Not at all. 

Q. Have these proceedings for the purpose of impeaching Judge Busteed grown out of 
the state of feeling as to which you have been inquired of.—A. Not in the slightest, I think. 
The strongest feeling in the public mind in that direction would be more likely to have 
existed at the time Judge Busteed came there first, because it was earliest after the difficulties 
between the different sections of the country; but when Judge Busteed arrived there he was 
received kindly, and very great attention was paid to him; he was received kindly, I think, 
by everybody ; everybody was disposed to accept him and to treat him with all proper respect. 

I heard of many parties, some given to him directly and some to which he was invited. There 
seemed to be rather a rivalry on the part of a number of citizens who should pay him most 
attention. 

By Mr. Churchill: 

Q. Was there anything in the personal relations between the judge and the plaintiff's in 
the cases mentioned in the second and third specifications, to which you have referred, or 
between him and the counsel for the plaintiff's, that gave occasion to any suspicion.—A. I 
know of none. There had been some unpleasantness between Governor Watts and Judge 
Busteed ; whether it was before or subsequent to that time I do not recollect. 

Q. There was nothing, then, but the character of the decision as a legal decision that gave 
occasion for what you have said.—A. Nothing that I can see, beyond that fact. I was 
impressed during the progress of those cases and of others with the idea that in all cases in 
which J. Q. Smith was concerned the judge showed a decided leaning in his favor. J. Q. 
Smith was district attorney ; he was the attorney for Harper in the case of Harper against 
Graves. 

By Judge Busteed: 

Q. You have a son-in-law in Montgomery who is a very prominent physician.—A. I have 
a son-in-law a physician. 

Q. What is his name.—A. William O. Baldwin. 

Q. Ho you know that he refused to be introduced to me.—A. I do not. 

Q. Hid you ever entertain me.—A. I never did. 

Q. Did you join in this rivalry that you speak of—A. I never did. 

Q. Your son-in-law is a very prominent and wealthy gentleman of Montgomery.—A. He 
is a man of some wealth. 

Q. And a prominent, reputable gentleman.—A. He is. 

Q. Did he ever entertain me.—A. Not to my knowledge. 

Q. Did you know of any person in Montgomery who entertained me except Mr. Knox.— 
A. I know of no other gentleman at Montgomery with whom you remained continuously at 
his house. 

Q. State the name of any gentleman at Montgomery at whose house I was entertained at 
a party.—A. I understood you were entertained by Colonel James K. Powell, Mr. Thorring- 
ton, a lawyer, Dr. Burney, United States revenue assessor, Major Arnold, Judge Chilton, 
and several members of the bar. I knew of those ; there might be more. 

Q. Do you not know that in the minds of the whole bar ot Montgomery there was a very 
strung piejudice, both personally and professionally, against J. Q. Smith, United States dis¬ 
trict attorney.—A. There was, I think. 

Q. Do you not know that you all regarded him as greatly inferior in professional acquire¬ 
ments.—A. He was so regarded. 

Q. Universally by the bar.—A. I cannot say universally. 

Q. Do you know of a prominent exception to that proposition.—A. I do not. 

Q. Is it not a fact that you all consider yourselves very greatly his superiors in professional 
acquirements.—A. I cannot say that all did. I think that, generally, gentlemen of the bar 
there do so consider it. 

Q. You regarded him as a weak brother.—A. I think he was so regarded. 

Q You have been upon the bench.—A. I have. 

Q. For how many years.—A. For six years. 

Q. Sitting upon the bench as a judge, if an attorney appeared before you upon the trial of 
a case whom you felt to be greatly interior in ability to the person who was opposed to him, 
would your sympathies go in favor of the weak brother, or in favor of the strong one.—A. In 
favor of the weak one. In regard to the case mentioned in the specification fourth of the 
United States vs. 192 bags of cotton, I may say that I was in that case. When it came on, 
Mr. Morris himself proposed to put in a claim in behalf of the Bank of Louisiana. He was 
acting, it might be said, in a two-fold capacity. The property had been attached by Mr. 


57 


Wilson as the property of the Bank of Louisiana; Mr. Morris had replevied the property 
under the law of Alabama as a stranger, and he proposed to appear in that ease as a claim¬ 
ant in Ins capacity as the replevier of the property. Judge Busteed refused to allow him to 
act in that capacity, and he was not allowed to appear; he was afterwards, on my represen¬ 
tation as attorney in fact of the bank, allowed to put in a claim for the Bank of Louisiana 
and this claim was received. In that trial, which was protracted an entire evening I could 
not undertake at this remote period to detail all that transpired. A bill of exception has been 
taken in the case, as I understand. That gives a pretty full account and description of the 
progress of the trial and of the testimony which was offered and rejected, as well as the 
manner in which the case was conducted; as Judge Busteed has signed that bill of excep¬ 
tions, I presume it is correct, and I would like to refer the committee to it. 

By Mr. Eldridge: 

Q. Do you know of anything that Judge Busteed did wrong in that case.—A. Yes, I think 
so. In that case I demanded a jury; he denied it, and assumed to decide on the facts as 
well as the law himself. 

Q. In other words, he tried it as an admiralty proceeding.—A. Yes, sir. In the com¬ 
mencement of the trial and during pretty much the whole case, when many questions were 
asked of the witness, Judge Busteed returned directly upon Mr. Smith and said, “ Do you 
object to that, Mr. District Attorney?” Mr. Smith would say, ‘‘Yes, I object.” This was 
a very frequent practice. James Q. Smith was the district attorney. Judge Busteed would 
immediately announce, “ Objection sustained, exception noted.” And so it progressed for a 
great while; at length, however, having become familiar with what was expected, when a 
question was asked, the judge would turn his eye upon Mr. - Smith, and Mr. Smith would say, 
‘‘I object to that question;” “objection sustained, exception noted.” So it progressed 
through the case. Mr. Morris was the claimant upon the part of the banks, and Calkings & 
Bennett were claiming also. Watts and Troy appeared for Calking & Bennef; Judge Rice, 
Chilton, and myself appeared for Mr. Morris. Questions were asked by Judge Rice in the 
course of the examination, I will not say in the same words, but to the same effect, that were 
objected to and excluded ; but when Governor Watts came to examine witnesses, similar 
questions were asked by him and objected to by us, but were admitted by the court. These 
questions are set out in this bill of exception to which I refer, and will appear there in writing. 

Q. And this you claimed to be a wrong upon the part of Judge Busteed in the trial. Were 
there any other wrongs committed by him.—A. There is a good deal that we claim to have 
been wrong, and as will appear by this bill of exceptions referred to. There were objections 
made to the jurisdiction of the court to the filing of the information to the affidavits in the 
information, all of which is set out in the bill of exceptions, and will be more conspicuous 
in that record than I can state it from recollection. 

Q. Was there anything in the manner of the judge that you complain of.—A. Yes, sir; 
a the progress of that case sometimes questions would arise that we were disposed to argue 
before the court, and Judge Busteed was on this occasion very arbitrary and dictatorial; his 
manner was harsh and disrespectful altogether to the different attorneys of the claimant, and 
we were ordered peremptorily to proceed when we would propose an argument; we were 
ordered in the most peremptory and arbitrary and insulting manner to proceed with our 
examination. 

Q. How was he treated by you.—A. With entire respect, so far as I was capable of doing, 
for whatever feelings I might have had towards Judge Busteed myself, I always deported 
myself, in the management of a case, towards him with the respect which I considered due 
him as a judge, and to the court over which he presided. 

Q. How was it with those associated with you.—A. Not a word of disrespect was offered 
to him unless he might have considered our disposition to argue the question of the correct¬ 
ness of his legal views as such ; but all this was done in a respectful manner towards him. 

Q. Did he make any complaint of your treatment of him during the trial of the case.— 
A. None, whatever, except by the manner in which he ordered us peremptorily and arbitra¬ 
rily and harshly to go on with the examination—to proceed. He would not allow us to pre¬ 
sent our views of the incorrectness of his decision. 

Q. Did he not hear you argue questions when they first arose.—A. No, sir ; the moment 
a question arose and we attempted to argue it, he would treat us in the mflnner I have stated. 

Q. You say he refused to allow Mr. Morris to appear in the case as having replevied the 
property.—A. Yes, sir ; Mr. Morris had put in a claim of that character. 

Q. But he allowed Mr. Morris to prove the right of the bank.—A. Yes; he allowed Mr. 
Morris to claim for the bank. 

Q. Was there any wrong done to anybody in that ruling.—A. I do not know whether 
there was or not. I do not know whether the rights or interests of the parties were affected 
by the proceeding or not. 

Q. Was not the only interest Mr. Morris had in the case the interest as agent or represent¬ 
ative of the bank.—A. That was all. 

Q. If lie allowed him to prove the right of the bank did not that present the whole question so 
far as Mr. Morris was concerned.—A. Perhaps it did ; we were inclined to think at the time 
that Judge Busteed was disposed to bring the bank before the court directly, so that objec- 


58 


tions might be made to the rights of the bank. In his view of the case that would not apply 
if Mr. Morris appeared in the other character. I will not say this as a fact; it was a matter 
of inference upon our part. 

By Mr; Woodbridge : 

Q. Did it not require an affidavit on the part of Mr. Morris to come in as defendant.—A. 
It did. 

Q. Did he file any such affidavit on this trial.—A. Yes; and was afterwards allowed to 
appear as an agent of the bank. 

By Mr. Eldridge : 

Q. These 192 bales of cotton have been condemned as forfeited to the United States as I 
understand. Could that have been prevented legally by proving the interest Mr. Morris had 
at the same time the interest of the bank was established.—A. It is possible that bad Mr. 
Morris appeared in the character of replevier we might not have been forced to proof in refer¬ 
ence to the purchase and ownership of the bank and the manner of that ownership. 

Q. Was not the following issue involved in the ownership of the bank and the manner in 
which it came by the cotton.—A. It was; and I do not undertake to say that the result 
would have been different; I only said the fact that he refused Mr. Morris the right to appear 
as the replevier of the property. * 

By Judge BtJSTEED : 

Q. In the Bose Morgan case, I want to ask you whether there is any time fixed by the 
code of Alabama in which the admeasurement of the widow’s dower must take place.—A. 
There is ; I think the time stated is within three years; but that requirement is not general. 
It is as against certain parties, I think. 

Q. In the case of Harper & Brothers vs. Graves and others, is there anything to prevent the 
admeasurement of dower now if she is entitled to it. Upon the hypothesis that this decision 
was all wrong, has she not still her remedy.—A. I presume she may have her dower assigned 
to her; but she would have to bring action to recover it against the party purchasing. I 
presume an improper sale could not prevent her from recovering her rights of dower; but 
she would have to be at the expense of a lawsuit to recover. 

By Mr. Semple : 

Q. Referring now to the fourth specification, last charge, I ask you to state to the com¬ 
mittee what you know of that case.—A. James Fountain was a citizen of Montgomery 
during the war; he obtained cotton and stored it in a cellar in the city of Montgomery: on 
the approach of Wilson’s forces on Montgomery the authorities there appropriated cotton, 
wherever they could find it, for the defence of the city, as breastworks to form an obstruc¬ 
tion to the approach of the enemy, as far as practicable; an application was made to Mr. 
Fountain for his cotton. I think he replied that he had no cotton. The officers, however, 
charged with the duty of collecting this cotton, said that he had it, and that it was in a cer¬ 
tain cellar ; that they had been ordered to take it, and must take it. They were about to 
force open the door, when Mr. Fountain told him he did not want his lock broken ; that he 
would open the door, which he did. They took out the cotton and carried it away, to be 
used in the defences. Mr. Fountain swore on the trial that he went along with the parties 
and saw the disposition made of his cotton; that Wilson approached and took possession of 
the city. He went to reclaim his cotton ; did reclaim it, and brought it back and put it into 
store again. An information was filed against him for 2,500 pounds of unpacked cotton. The 
testimony of two negroes who had been, I think, servants of Fountain, was introduced, and 
proved that he had taken back to his place two bales of packed cotton and three bales of 
unpacked cotton, or three bales of packed and two bales of unpacked cotton. I do not 
recollect which the proof was; that was the condition of the cotton when taken by Foun¬ 
tain. Fountain proved that this cotton belonged to him; that he was a loyal citizen ; that 
he had always been opposed to the war; “he had never done anything to assist in the war, 
but had always been in opposition to the spirit of rebellion.’' He explained that he had denied 
having any cotton to the confederate authorities, for the reason that he did not want it to 
be taken by the confederate government for the defence of the city; that he went to the 
defences afterwards, recovered his cotton, and took it back. At this trial a jury was 
demanded and was denied by the court. There were many exceptive allegations to the juris¬ 
diction ot the court, all of which are on file, or on record, in Montgomery. On the trial of 
this case, after the proof made by Mr. Smith, the district attorney, Mr Fountain was put 
upon the stand himself. He testified to the fact which I have stated; and I then called on 
him to know whether that cotton belonged to him. Judge Busteed spoke up very arbitrarily 
and said the question should not be answered. 


* Morris had no right to appear but as a replevier of the cotton, except as that right was given him by the 
attorney-in-fact of the bank then present; and but for the presence of that attorney, under the ruling of the 
court, Morris could not have put in a claim for the cotton. This is a statement of facts not given in testi¬ 
mony before the committee, a. m. 




59 


By Judge Busteed: 

Q. Was this during Mr. Fountain’s own examination.—A. Yes; I put the question to him 
in cveiy shape and foim that I could frame it, so as to relieve it from what I supposed might 
he the objection of the judge to it, in order to prove by Fountain himself the ownership 
of this cotton, but invariably he stopped me, and would not allow the witness to answer the 
question. His manner was rude—very rude, very offensive; that was the general remark of 
the bar at the time, as they afterwards told me ; it was exceedingly offensive and harsh, and, 
if the term insulting could be properly applied to language used by a judge to an attorney’, 
I should say it was exceedingly insulting. Our own supreme court, in the case of Wilson 
vs. Iverson, had held that the question of ownership was a fact of which the witness might 
speak. 

By Mr. Eldridge : 

Q. Did the judge give any reason for his ruling in this case.—A. No. I asked him to 
explain to me what was his objection to the question. 

Q. Did he himself raise the objection.—A. Yes; it did not come from the district attorney 
at all. I asked him what was his objection to the question, so as to enable me to put it in 
such a form as would be admissible. He replied that it was not for him to give instructions 
to counsel; that it was not his business to advise me how to manage my case. Sometimes 
before I had commenced an interrogatory to a witness, and before he could know what ques¬ 
tion I was going to put, he would say to me in a very abrupt, harsh manner, “ shant answer 
the question, shant answer the question, shant answer the question,” in terms apparently 
of anger as well as of great disrespect, as 1 thought, to a member of the bar. 

Q. How did you treat him.—A. With entire respect; not that I thought he desrved it as a 
man at all, but as a judge of the court. This course on my part was governed altogether 
from my consideration of the respect due to the court, and from my own self-respect in my 
position as an attorney practicing in the court. 

Q. Did you not get angry.—A. I felt much incensed at the wrong, as I conceived it to 
be, but I made no expression of it; I did not manifest it at all ; there were gentlemen there 
who witnessed it, and who will testify as to my manner. Colonel Elmore and Governor 
Watts were there, and will testify to this ; they will state whether Judge Busteed’s conduct 
was proper or tolerable in any court of justice. 

Q. Have you any knowledge of the reason why Judge Busteed thus treated you.—A. I 
have no knowledge; I have a suspicion. 

Q. Have you any reason to believe that the judge was actuated by corrupt motives in the 
trial of this case.—A. His conduct was such as to satisfy me he could not have been gov¬ 
erned by any principle of right of justice or form of law ; the inference upon my mind was, 
and is now, that he was actuated by corrupt motives. 

Q. Have you detailed all the facts upon which you came to that conclusion.—A. No, sir. 
I will state further that after the trial of this case, I entered upon the motion docket a 
motion for a new trial; and putting down the causes for a new trial, among other things I 
put in an affidavit of the party who went after the cotton, and took it out of his store, detail¬ 
ing the opposition of Mr. Fountain to the use of his cotton in that manner, and explaining 
the authority under which it was taken. This case of 192 bags of cotton referred to was 
tried on the last day of the term, which had been taken up late in the afternoon, against the 
wishes of the defendant’s counsel, who were much wearied, insisted upon an adjournment 
for that day, not for a general adjournment; but Judge Busteed persisted in going on. As 
soon as this case of 192 bags of cotton was concluded, another cotton case of a similar 
character betweeu the same parties was called, and the judge said to the district attorney, 
“Mr. Smith, are you ready to proceed with the trial of this case ?” Mr. Smith replied that 
he was not ready; Judge Busteed then immediately ordered the marshal to adjourn the court, 
and the court was thereupon instantly adjourned, and we had no opportunity of presenting 
our motion for a new trial. 

Q. Did you ask the judge to hear your motion for a new trial.—A. No, sir, not at that 
time. 

Q. Did he know that you were desirous to make the motion.—A. I had entered it upon 
the motion ducket; I had no opportunity of calling his attention to it. At the next term of 
the court, contrary to any practice I ever knew in my life, on the first day of the commence¬ 
ment of the term he took up the motion docket in the absence of counsel, and acted upon 
some of the motions overruling them, and in this case overruling the motion for a new 
trial in my absence without any hearing whatever. A friend of mine ran into my office, 
told me that Judge Busteed was acting upon the motion docket, and that he was about to 
dispose of my motion in the Fountain case. I went up directly, and found that the 
motion had alieady been disposed of. 

By Judge Busteed : 

Q, State in this connection who your friend was who ran in and informed you.—A. El¬ 
more Fitzpatrick. 

By Mr. Eldridge : 

Q. Did you then ask the judge to re-open the motion.—A. I did not; I thought the dis- 


GO 


position of the motion was improper, but I could not undertake to say what might he the 
ruling 1 of Judge Busteed upon any course I might take. A few days after Colonel Elmore 
came in and asked for the reconsideration of a motion on the docket which he had put there 
for some purpose, and Judge Busteed heard it, and my recollection is that he set aside a 
ruling he had made in that case and re-opened the case. I then made a similar application 
in the case I have referred to on the first occasion when I had the opportunity, but ho over¬ 
ruled my application. 

Q. Did you argue that motion to re-open the case.—A. I do not think he heard any argu¬ 
ment; he said he would not hear any, I think. I may state I did not make any argument. 

Q. In Colonel Elmore’s case did he hear argument before re-opening it.—A. I think there 
was no argument at all except the mere statement by Colonel Elmore that he was taken by 
surprise, and the request that the judge would re-open the case. After this I made another 
motion, presenting other grounds in connection with this already offered in the Fountain 
case for a new trial. I think this motion came up afterwards at a regular call to the 
motion docket, which by our practice is generally at the end of the term, or by official notice 
before the end. I asked him again to hear the motion assigning other grounds than I had 
taken in the first instance, and supplying other affidavits than those accompanying the first 
motion. Judge Busteed remarked that this was a case he had disposed of before. I told 
him that I had presented other grounds. He asked me to explain in what respect, and I com¬ 
menced to explain, when he stopped me short and said he desired to hear nothing further ; 
that he had “denied the motion once,” and added, “ I dismiss this motion with $10 costs,” 
and that was the end of it. In the mean time I had presented a statement from Judge 
Brooks and Governor Watts of their recollection of the facts of the case* upon which to predi¬ 
cate a new trial. In the second application, whether he ever looked at this statement of 
facts or not, I am not sure ; at any rate he would not re-open the case. 

By Mr. Semple : 

Q. Did you except to the ruling of the court excluding the testimony of Fountain as to 
the ownership of the cotton.—A. I did not; for the reason that the amount in controversy 
was less than $2,000, and I did not consider that an exception would avail me anything, be¬ 
cause if I appealed to the circuit court, as I had the right to do, I should be appealing from 
Judge Busteed in the district court to Judge Busteed in the circuit court, and he had already’ 
decided the case. 

Q. You say the libel or information was for 2,500 pounds unpacked cotton.—A. Yes, sir. 
The position I took before the court was that the information was for 2,500 pounds unpacked 
cotton ; while the proof was conclusive and beyond question that only a part of this amount 
was unpacked cotton ; that a part of it was packed, and that the court could not give a 
judgment, as stated in the pleadings, for any but the unpacked cotton. In the course of the 
examination one of the witnesses went on to speak of the packed cotton. To that I objected. 
But Judge Busteed disregarded the objection, and gave judgment, I think, for $1,100. Judge 
Busteed took notes at the time, and I requested him this morning to let me look at them in 
the presence of the committee, which he declined to do, saying he would not trust me with 
them. 

Q. If there was anything peculiar in the manner of the court in adjourning the court, as 
you have stated; you will please relate it.—A. I am not clear upon the subject. I have 
conversed with several about it. I think he ordered the marshal, “Mr. Marshal, adjourn 
the court;” he there made a pause, and then, I am inclined to think, added, “sine die.” 

Q. Do you remember having presented a bill of exceptions to Judge Busteed for his sig¬ 
nature in any case in which you were engaged; if so, state what occurred at the time of 
presenting it, and also the character ot the case in which the bill of exceptions was offered. 

(Question objected to by Judge Busteed, as not referring to any charge before the com¬ 
mittee. 

Question allowed.) 

A. A suit had been brought by Harper against Matt Gayle. I appeared in defence of 
that suit, and took exceptions to the ruling of the court. After the adjournment of the 
court so suddenly, so unexpectedly, in the manner which I have stated, I called upon the 
judge that night and asked him if he would consider a bill of exceptions in th%t case. He 
told me no; not then ; that he was so exhausted and fatigued he could not do it; that he 
expected to be in Montgomery in five or six weeks, when he would give me a bill of excep¬ 
tions. As soon as I heard that he had returned I called upon Judge Busteed, at his lodgings, 
and asked him for a bill of exceptions in that case, which he refused. At first he said he 
had come up there on private business, and that he could not then do any business. I asked 
him if he would give me the bill of exceptions at some time afterwards. He replied that he 
did not know that he had any right to give bills of exceptions out of court, and refused. 

By Mr. Woodbridge: 

Q. Were exceptions taken at the trial.—A. Yes. 

Q And noted by the judge.—A. I cannot say. 

Q. Was he requested to note them.—A. I cannot say. I think so; though, according to 
our practice, he is not called upon specially to note them. I have heard Judge Busteed, 


61 


over and over again, state to the bar that any exceptions they desired to make to his 
rulings they should have, whether excepted to at the time or not. [To Judge Busteed.! 
Am I right? 

Judge Busteed. You are not. 

By Mr. Semple : 

Q. Did he examine your bill of exceptions. —A. No, sir ; he declined to consider it at all 
in that case. He first declined on account of fatigue, and the second time because he came 
up there on business and could not do it. Afterwards he said he had no right to give a bill 
of exceptions in vacation. 

By Mr. Woodbridge : 

Q. Did you apply to him afterwards.—A. I never applied to him again. I asked him if 
I should call on him at some other time, and he replied that he did not think he had any 
right to give a bill of exceptions in vacation. 

Q. Did you apply to him at the next session of the court —A. I did not. I thought I had 
exhausted all prospect of obtaining a bill of exceptions, and I never asked again. 

By Mr. Semple : 

Q. Do you know anything else tending to elucidate these charges, or throw light upon 
them.—A. Not of my own knowledge that I now recollect. 

By Judge Busteed : 

Q. Have you any written minutes in the trial of the case of Harper against Matt Gayle.— 
A. I have a bill of exceptions 

Q. Did you at the time of the trial make any written memoranda of the evidence.—A. I 
have no written memoranda now of that trial. If I took a memorandum at that time I have 
not preserved it. 

Q. Did you ever take any written memoranda of the trial in the case of the United States 
against 2,500 lbs. unpacked cotton.—A. Not in the course of the trial, I think. 

Q. You say there were a great many exceptive allegations filed in this case ; is that true.— 
A. That is true. 

Q. You are sure about that.—A. I am. 

Q. You cannot be mistaken upon that point.—A. I do not think I can. 

Q. In the case of the United States against Fountaiu, claimant, or against the cotton he 
claimed, did you move to quash the information upon the ground that tlie act of Congress of 
August, 1861, did not cover the case, because there was no rebellion existing in Alabama in 
November, 1885.—A. I do not recollect whether I did or not. 

Q. Did you iu that case move to quash the information because under the rule in admiralty 
the libel of information was not sworn to.—A. I think it very probable I did. 

Q. And that motion was denied.—A. I think it was. 

Q. Do you recollect the name of the witness who was examined in that case.—A. I do 
not; I recollect that two negroes were examined ; that Fountain himself was; and, I think, 
Colonel Bugby was examined. 

Q. Do you recollect now the allegations in your answer.—A. They were numerous. I 
cannot undertake to detail them. The allegations are on file iu Montgomery. 

Q. Do you recollect that in your answer you denied that the cotton was used for breast¬ 
works.—A. I think it is very probable. 

Q. Do you recollect in your answer a denial that Montgomery was defended against the 
federal forces by the use of cotton for breastworks.—A. 1 do not recollect whether such a 
denial was contained in the answer or not. 

Q. You have said that Fountain proved himself to be a loyal man during the rebellion ; 
was he a loyal man during the rebellion.—A. I think he was; he was so regarded there. 

Q. Did you not, in the trial of the case, produce in court the pardon of Fountain for his 
participation in the rebellion.—A. I think not. 

Q. Do you know whether you did or not.—A. I think not; I do not recollect doing it. 

Q. Will you say you did not.—A. I will not; I do not think I did. 

Q. Will you say you did not put in the pardon of James Fountain, which pardon was 
dated November 4, 1885.—A. I will not say I did not. I have no recollection of it. 

Q. Who was the attorney of the United States in this case.—A. James Q. Smith. 

Q. You say you recollect that James Fountain, the claimant, was examined as a witness ; 
do you recollect asking whether cotton belonging to him was voluntarily used or employed 
by him, or with his consent, to aid, abet, or promote the inauguration of rebellion against 
the government of the United States, iu the year 1863, 1864, or 1865.—A. I cannot say that 
I asked the question in those words. . 

Q. And that there was an objection made to the question by Mr. Smith; that Ins objection 
was overruled, and that the answer of 1 ouutain was 1 No, sii ; none. A. I do not lecol- 

6C q* Do you recollect asking the question, “ What were your feelings towards the rebellion,” 
that there was objection made to that question by Mr. Smith, which objection was sus- 


tained.—A. I recollect inquiring of Fountain what were his sentiments and feelings in regard 
to the rebellion. 

Q. Will you add that you recollect that immediately after you put that question objection 
was made by the district attorney ; that the objection was sustained, and that you then put 
in the pardon of Fountain, the claimant, which pardon bore date the 4th November, 1865.— 
A. I do not recollect it. I cannot say that it was not done. 

Q. Do you recollect that these black men testified that Fountain promised them if they 
would put the cotton into a place of safety he would give it to them after “the Yankees ” 
got away ; and that the black men further testified that Fountain did not keep his promise 
with them.—A. I think there was proof of that kind. 

Q. Now about this sudden adjournment of the court; Judge Busteed had worked pretty 
hard in the middle district, had he not —A. He had been pretty assiduously engaged. 

Q. Going late into the night, and into the heat of summer.—A. Yes. 

Q. In a very close, confined court-room.—A. I do not think it was confined. I think it 
was very well ventilated. There were windows on two sides and in one end of the room. 

Q..There was no complaint on your part, or that of the bar, of want of industry on the 
part of Judge Busteed.—A. None, that I recollect. 

Q. You all admitted that he worked pretty hard.—A. Sometimes he did ; sometimes he 
came late into court. 

Q. How often was he late in coming into court.—A. I think frequently; sometimes he 
was as late as 12 o’clock. 

Q. You have spoken of a motion for a new trial in the Fountain case ; let me ask you 
whether you are not in the habit of going around the court-room very much as I shall now 
describe, with a stick and a knife in your hand, whittling in this way, (illustrating,) during 
the proceedings of court.—A. I cannot say whether I ever did or not. If I did, it was an 
immaterial thing to me, without any intention of disrespect to the court. I do not think I 
ever walked round the court-room in the manner you have exhibited. 

Q. Do you know that after the disposition of your first motion for a new trial in the case 
of Fountain I stated to the members of the bar that my respect for your age and position 
induced me to treat you differently from what I would treat anybody else under the circum¬ 
stances, and that you demurred, and said I had treated you very badly.—A. I think some¬ 
thing of that sort was said. 

Q. I want you to refresh your recollection about the second motion for a new trial; do 
you not know that there were three or four grounds (I forget which) entered by you upon 
the motion docket for a new trial.—A. I think it very probable. • 

Q. Do you not recollect that on the second motion for a new trial in the Fountain case I 
asked yon if the same grounds of motion were relied upon that were relied upon the first 
motion, and did I not ask you that question in open court.—A. I do not know that that 
was the language precisely. There was something of that character. I think perhaps you 
asked me if the grounds relied upon in the last case were different from those presented in 
the first. 

Q. Do you recollect stating that they were different.—A. I recollect now that they were 
different in some respects ; that there were reasons assigned in the latter that were not in 
the first. 

Q. Do you not recollect that I took the motion docket and read seriatim the grounds of 
the motion in the first case and the grounds of the motion in the second case, and that they 
were identical in language.—A. I am satisfied to the contrary of that. I know it was not 
so. I do not think you read the grounds from the motion docket of the first motion at all. 

I am sure you did not read them over seriatim , and that they were not the same. I am sat¬ 
isfied of that. 

Q. The reason of the adjournment of Judge Busteed’s court was that he had to hold court 
in Mobile, was it not.—A. It is probable. I cannot say. 

Q. D( you not know what the terms of court are in the different districts of Alabama, 
and do you not know that they lap over each other almost, giving not more than a week 
between the close of the term at Huntsville aud the commencement of that at Montgomery, 
and not longer than a week between the close of the term at Montgomery and the com¬ 
mencement of that at Mobile.—A. I do not. It may be so. I am not certain as to the time 
of holding court in Mobile. I do not think you held court at Montgomery on the day 
aupointed, after the adjournment of the court at Huntsville, and so it may have occurred at 
Mobile. 

Q. I did not hold the court at the day appointed because it gave me but one day to travel, 
and it required three days to make the journey. You complained that the judge did not give 
yi u this bill of exceptions when you brought it to him, and that the first time you presented 
it he was very much fatigued. He had been holding a pretty long term of court, had he 
not.—A. Two weeks, I think. 

Q. Running late into the night.—A. Sometimes. 

Q. He had been pretty industrious that term, had he not.—A. I think so. 

Q. Do you think he might fairly have complained of fatigue on the night in which you 
presented with this bill.—A. I cannot say. 1 heard of his going out to a party that night. 


63 

i 

Q. Do you think he was truly fatigued, or that it was a mere sham.—A. I think it was a 
mere sham, if you ask for my belief. 

Q. Now we come to what is not a sham. Do you not know that, under the statute of 
Alabama, Judge Busteed could not give you a bill of exceptions.—A. No, sir ; I do not. 

Q. Is there not a statute to that effect.—A. No, sir. 

Q. There is nothing in the act to prevent it.—A. No. sir. There is a qualification of this 
kind—that they shall not be signed in vacation except by consent of parties in writing. 

Q. Did you bring the consent of the district attorney to this bill of exceptions when you 
offered it.—A. The district attorney was present and consented that it might be signed when 
you came back. I did not bring his consent in wiiting. According to the almost universal 
practice among lawyers, this law 7 requiring consent in writing is considered as almost obso¬ 
lete. No such consent in writing is required. Never, except upon one occasion, have I been 
asked to sign an agreement of that sort, and bills of exceptions are often granted in vaca¬ 
tion without a written consent. 

Q. You don’t like the manner in which Judge Busteed discharged the duties of his office.— 
A. I do not like your manner to the gentlemen of the bar at all. 

Q. Your feelings towards Judge Busteed are of a vindictive and unkind character, are 
they not.—A. I would not do you injustice if I knew 7 it. 

Q. Are not your feelings towards Judge Busteed of an unkind and vindictive character.— 
A. They are not vindictive. They are unkind, and for good reasons ; for reasons of great 
disrespect on your part, and of very unkind conduct towards me. 

Q. We have not had any relations out of court, have we.—A. Never, except upon the 
occasion referred to, about this bill of exceptions. 

Q. Was my manner rude to you then.—A. No, it was not. 1 gave you no occasion that 
it should be rude. I w r as careful that you should have no excuse for rudeness. 

Q. Have you attended meetings of the bar at Montgomery for the purpose of securing my 
impeachment.—A. I have. 

Q. And taken part in them.—A. I have. 

Q. Have you subscribed any money towards that object.—A. I never have. 

Q. Have you promised any.—A. No, sir; I have not promised any. I have given money 
to pay the expenses of Mr. Semple in coming here to look after this matter. 

Q. How much money have you given.—A. Not quite $30. 

Q. When w 7 as this given.—A. It w r as during the summer, w r hen Mr. Semple was here at 
the last session of Congress; probably about July, 1868. 

Q. James Q. Smith, the district attorney of the United States, was removed from office 
about that time. Do you not know that Mr. Semple came to Washington, and had his 
expenses paid, for the purpose, among other things, of procuring his removal.—A. I do not. 
I never heard of it before. 

Q. I put the same question to you in relation to John Hardy, United States marshal.—A. 
I have no information upon the subject beyond what you now mention. 

Q. Were you at a meeting of the bar of Montgomery at which Judge Chilton presided.— 
A. I was. 

Q. How r many lawyers were present at that meeting.—A. I cannot undertake to say ; the 
bar generally w 7 ere there. 

Q. Were there 50.—A. I do not think there were. I should say between 15 and 20; pos¬ 
sibly as many as 25. The prominent lawyers were generally there. 

Q. Were any of the younger members of the bar present at any of these meetings ; if so, 
state who they w'ere.—A. I think Mr. Holtzclaw 7 . 

Q. Is he not as old a man as I am.—A. I think not. He ranks among the younger mem¬ 
bers of the bar. I do not know that I could name any other. 

Q. Did you take any part in these meetings yourself.—A. I was there. I took no active 
part. 

Q. Except giving this money.—A. I did not give it then. 

Q. Have you, prior to I860, taken oath to support the Constitution of the United States ; 
and if so, how often.—A. I do not recollect having taken an oath to this effect but once— 
twice, perhaps. 

Q. Did you not take it when you w 7 ere admitted to practice your profession.—A. Yes. 
That was once; and the second time was w r hen I went upon the bench. 

Q. How 7 old were you when you went upon the bench.—A. I w r as born about 1798, and I 
went upon the bench, I think, about 1837. 

Q. Have you, since taking these oaths, engaged in armed rebellion against the United 
States, or given aid and comfort to her enemies —A. I have. 

By Mr Semple: 

Q. Have you anything to say in explanation of any question asked you upon the cross- 
examination.— A. i have no explanation which I desire to make, except in regard to the fact 
of my having taken an oath to support the Constitution of the United States, and afterwaids 
having been engaged in opposition to the general government. It is known, I suppose, to 
every person, that the south determined upon its secession from the general government; 
and under the action of the Confederate States, as a government dc facto , I felt myself entirely 


C4 


authorized to obey its behests, and I did so. Another case I might state, was that of a suit 
brought by me upon a note coming from a gentleman living in Cincinnati. One ot the 
makers of the note was in Montgomery, and I called upon him for payment. He said he 
knew nothing about the transaction upon which the note was predicated ; that it was given 
by his co-partner, but that it made no difference ; that he was broke and could not pay it. 
Upon the trial of the case the plea of non est factum was put iu for the defendant; and that 
having been done, I stated in evidence, as a witness, to the jury that I had presented the 
note to the party who had put in this plea, and that lie had replied to me as I have stated, 
and this and the note which was read to the jury was all the testimony in the case. The 
defendant’s counsel in his argument before the jury insisted that the plaintiff was not entitled 
to recover, because the defendant had sworn to the plea of nun est factum. In reply to that 
argument I stated to the jury that that was no evidence; that it was a mere matter of plead¬ 
ing ; that, under the laws of Alabama, the plea of non est factum cannot be received, except 
upon oath ; but that the office of the oath was simply to render the plea admissible, and that 
it was not evidence in the case; that the jury could not look into the fact. Judge Busteed, 
in his charge to the jury, said this was one of the cases he was gratified at being able to sub¬ 
mit to the jury without any charge by the court. I then asked Judge Busteed to charge the 
jury that they could not look to the oath of the defendant attached to the plea of non est 
factum as proof of the case. He replied, in a huffy sort of manner, ; ‘I shall give no other 
charge than 1 have done.” The jury went out, and, after some time came back and brought 
in a verdict for the plaintiff. After the jury came in, judge Busteed, looking over to where I 
was sitting with the bar, smiled, and asked me to come to him. When I approached, he 
said, “ I do not know how I could have given any other charge than I gave in that case.” 
I thought that a very remarkable circumstance—that he should call me up there to explain 
his charge. I replied that I did not know how he could have refused to give the charge I 
had asked of him. He began to explain to me, and I walked off directly. That was the 
only disrespect I ever showed to Judge Busteed in my life. I thought his conduct was so 
flagrant that I really could not stand and listen to him. 

Washington, D. C., January 7, 1869. 

John A. Elmore sworn and examined. 

By Mr. Woodbridge: 

Question Please state if you have read the charges and specifications in the pamphlet now 
before you, made by Henry C. Semple; and if so, state any facts you may know material to the 
charges.—Answer. I can say, in regard to the first specification to the first charge, that .Judge 
Busteed presided in the case referred to of Jacob Stanwood vs. James A. Turner, upon some of 
the preliminary motions. The case has never been finally heard. The injunction prayed 
tor was granted by the judge. I was retained as solicitor for Stanwood. the p'aintiff. I 
know nothing of the allegation that I was employed in the case at the suggestion of Judge 
Busteed ; and I know nothing about Judge Busteed having been consulted iu the case, except 
what the record shows. One ot the allegations iu the bill which was sworn to by Mr. Stan¬ 
wood was, that the purchase was not to be consummated until Judge Busteed had exam¬ 
ined the title and pronounced it good, and approved of the price. Stanwood being iu Bos¬ 
ton, his agent acting for him in Alabama was directed to consult Judge Busteed upon these 
points; and, under the impression, from a letter from his agent stating that the titles were 
good, that Judge Busteed had examined the title, he made the allegation in his bill; but 
discovered afterwards that it was a mistake, aud made a motion to amend the bill, by stating 
that Judge Busteed had never examined or passed upon the title at all. Objection was made 
to the motion to amend, upon the ground that Judge Busteed had been consulted as counsel 
in the case. Judge Busteed overruled the objection, as I thought very properly, for the 
reason that, even if he had been consulted in regard to the title, the question at issue was 
not in reference to the title, but to misrepresentations as to the character of the plantation. 
I aigued the motion, and was entirely satisfied that Judge Busteed was quite justified in 
taking cognizance of the motion and in deciding as he did. I do not know that. I could 
state any fact within my knowledge or recollection tending to prove or disprove any of the 
other chaiges or specifications down to the second specification of charge four, iu regard to 
the case of Martin & Graydon vs. Rose Morgan. I was present in court when that case 
was proceeding. I do not know wbat the record sets out, but I think I could state what 
occurred in court.. It appeared that a part of the defence was that Rose Morgan had never 
been administratrix that the plea was ne unques administratrix. The judge charged the 
jury in substance, upon that question, that it was incumbent upon the defendant to prove 
that she did not properly appear in that capacity. ^ 

Q Mas there anything in the statutes ot Alabama changing the common law practice so 
as to impose upon the defendant in such a case the onus of showing that she was not the 
administratrix. A. Nothing. The common law practice has not been changed in that regard 
by our statutes. & 

By Mr. Eldridge: 

Q. Would your practice require a replication to the plea.—A. Under our practice a repli¬ 
cation would not be required, because the onus probandi would be upon the plaintiff to 


65 


prove that the defendant did act as administratrix. Judge Busteed, however, ruled that the 
burden of proof was not upon the plaintiff. 

Q. Do you remember who were the counsel for the plaintiff in that case.—A. I do not. 

I think Judge Chilton was one of the counsel for the defendant. 

By Mr. Semple : 

Q. Do you know anything of the intimacy existing at that time between Judge Busteed 
and James Q. Smith. If so, state what opportunity you had tor observing it, and what was 
the character of their intimacy --A. I had an opportunity of seeing them, because I was 
with them both more or less, and I recollect they were upon very intimate terms—unques¬ 
tionably so I was invited by Mr. Smith, and I think by Judge Busteed, into the room 
which they occupied together. They seemed to be upon very intimate terms. 

Q. Were you present at the trial of Harper vs. Gayle and others, at the spring term of 
18H7.—A. I was. 

Q. Will you state what occurred in the course of that trial, especially as to the decisions 
made by Judge Busteed.—A. I do not know that I can. I recollect that it was a case of 
ejectment, and understood from the remarks made by counsel in court while the trial pro¬ 
gressed that Mrs. Gayle was allowed to appear and defend as landlord; and I judged, also, 
from the instructions asked for to the jury, that she was permitted so to appear. I was 
present a part of the time during the trial of the case of the Uuited States vs. 192 bales of 
cotton, Josiah Morris and others, but I do not recollect very distinctly in regard to it. [ 
know nothing, of my own knowledge, of Judge Busteed having declared that he would 
imprison any jury that would not find a verdict in accordance with his charge. In regard to 
the first specification to the fifth charge, I know that a very large number of libels were tiled ; 
I do not know the number. 

Q. In these cases do you know of any allowance having been made by the judge to 
John Hardy, marshal of the middle district of Alabama, in addition to the fees allowed 
by law—whether he was allowed a commission ot ten per cent, upon the proceeds ot con¬ 
fiscated property condemned.—A. I do not know anything about that. As to the case of 
the United States vs. Josiah Morris and J. F. Johnson, I will state that there were two 
cases of that title, and that I was employed by Johnson in the first case, and think I was 
also in the last. 

Q. Do you know of anything in the course of the trial of that case indicating either cor¬ 
rupt or arbitrary conduct on the part of the judge, or insulting language to the. counsel 
employed.—A. I do not recollect anything now'; I was employed as I said, certainly in <me 
ca-e; but my health was very bad at the time, and I have no distinct recollection of any 
facts occurring upon the trial of the last case; I think Mr. liice principally managed the 
case for the defence. 

Q. In the case of the United Sates vs. 2,500 pounds unpacked cotton, will you stare 
whether upon the trial the conduct of the judge was arbitrary, arrogant, aud insulting to 
counsel, or whether there was anything in his conduct evincing a corrupt disposition or 
extreme ignorance of the law.—A. I cannot say that I recollect anything evincing corrupt 
conduct on the part of the judge. If I remember correctly, the allegation was that this 
cotton had been used by the confederate government in aid of the war. The claimant, 
James Fountain, proved that it had been taken from his house contrary to his protestations, and 
used for breastworks; that he afterwards, with the assistance of some freedmeu, had recov¬ 
ered it. Fountain himself was introduced as a witness to prove these facts, and Judge Mar¬ 
tin put some question to him for the purpose of showing that the cotton had not been so 
used with his consent, aud that he had reclaimed the cotton. The judge refused to allow 
the witness to answer the question—whether it was because of the form or nature of the 
question I cannot say; I know that he refused to allow witness to answer some questions 
which I thought material. Judge Martin insisted upon putting the question, and Judge 
Busteed very peremptorily refused to allow him to do so. His manner was very peremptory ; 
this is an opinion on my part. 

Q. Was it discourteous or disrespectful to Judge Martin.—A. I thought it was discour¬ 
teous ; I cannot say that he used disrespectful language. His manner was a little excited ; 
I could not say whether it was disrespectful exactly. It is very difficult to convey an exact 
impression of what his manner was. 

Q. What was the manner of the judge generally towards the members of the bar in his 
official intercourse with them, when presiding upon the bench.—A. I do not think his gen¬ 
eral manner was objectionable at all. There were cases in which I think he was very arbi¬ 
trary in his rulings. 

By Mr. Eldridge: 

Q. Were you engaged in this case of which you speak.—A. I was not, and I took no part 
in the trial, except to make a suggestion to Judge Martin that he should ask his question in a 
different form. I think I was present during the entire trial. 

Q. Do you recollect the language in which Judge Busteed refused to allow the question 
to be put, in which he exhibited discourtesy towards Judge Martin.—A. My impression > 
that the language he used was, (addressiug the witness;) “ You must not answer the queS* 

5 B 


66 


tionand that he ordered Judge Martin to take his seat on one or two occasions when he 
was urging reasons why the question should be put. 

Q. Did he hear argument upon any of these questions before overruling them.—A. My 
recollection does not enable me to answer that question. 

Q. What was his conduct towarus Mr. Smith, the district attorney, upon this occasion.— 
A. It was courteous. 

Q. -Was there anything peculiar in his manner. Did he suggest objections to be made by 
the district attorney.—A. I do not recollect that he did at all. 

By Mr. Churchill : 

Q. What was Judge Martin’s manner toward Judge Busteed.— A. My recollection is that 
when Judge Busteed refused to allow him to ask the question Judge Martin’s manner was 
very persistent; perhaps 1 would be going too far to call it defiant or aggressive; it is hard 
to define ; he seemed to be determined to put the question. 

Q. Did Judge Martin insist upon any particular form, or did he try to get in evidence 
which he thought, material.—A. My recollection is that he tiied to get in the evidence, and 
that he put the question in different forms. 

Q. Du you recollect his asking the judge at any time to give his reason for overruling the 
question, so that he might shape his question to meet the judge’s views.—A. I do not recol¬ 
lect it. 

By Mr. Woodbridge: 

Q. Did anything occur in that case, or in any other within your knowledge, which 
induced you to think that the judge was influenced by any corrupt or improper motives.— 
A. I cannot say that anything came to my knowledge which would lead me to say that the 
judge was influenced by corrupt motives 

Q. Did you attiibute the peculiarity of his conduct to infirmity of temper; or if not, to 
what motive.—A. I attribute it in part to a different system of practice which he had been 
accustomed to in New York from that we had been accustomed to in Alabama, and in 
part to quickness of temper. 

Q. Has the practice in your courts in Alabama been confined to a system of strict rules 
and regulations, or has it been, as we might say, free and easy.—A. It has been very loose. 

By Mr. Semple : 

Q. If you remember any occasion upon which the judge, in the course of the trial of a 
case, evinced an arbitrary temper toward the counsel, parties, or witnesses, please relate it.— 
A. The most striking instance that I remember was a case—the name of which I now for¬ 
get—in which I think Watts & Troy were employed. In the course of the trial in that case 
the judge more than once ordered Mr. Watts to take his seat, and more than once ordered 
Troy to lake his seat; I think he used the language once to Troy, “ Your conduct, sir, is 
shameful, most shameful.” That is the most striking instance I remember. 

By Mr. Eldridge : 

Q. Who was to blame in that case.—A. That is a question of opinion upon which you 
won id hardly require me to answer; if I must reply, I think the judge was to blame. 

Q. What was the conduct which the judge pronounced shameful —A. It was the pressing 
upon the court some point upon which the court had already decided against him; he was 
endeavoring to get the point reconsidered in regard to some question of evidence, I do not 
really recollect, what it was. 

Q. Was his manner offensive to the judge.—A. I do not think it was. 

Q. Was his language pioper.—A. I thought so. 

Q. Do you remember anything he said calculated to irritate the judge.—A. Nothing more 
than persisting in pressing his point after the judge had already ruled upon it. 

Q Did he do that unreasonably.—A. That is a matter of opinion; I never, myself, insist 
upon a point after the judge has decided the question against me; and if I were to give an 
opinion, I think it is improper for an attorney to do so. 

Q. Do you yourself know of any act of Judge Busteed, in his official character as judge, 
that was corrupt or evinced a corrupt motive.—A. None; I know nothing of the sort. 

Q. Have you been in constant practice in his court while he has been judge in Alabama.— 
A. Yes; in the courts of the middle district. 

Q. Have you attended every session of his court.—A. Every session. 

<^. Have you been pretty constant in the court-room during the progress of trials.—A. I 
may say 1 have been pretty constant in my attendance upon the court 

Q. Is there, or is there not, a pretty strong feeling on the part of the bar in Alabama 
against Judge Busteed.—A. A very strong feeling. 

Q. Do you know the cause of that. — A. I would have to answer that question partly from 
knowledge and partly from hearsay. There is a feeling that Judge Busteed in his conduct 
in court is very arbitrary and dictatorial; his manner is very different from what we have 
been accustomed to; and we have suffered from it in feeling very much indeed ; I have 
heard a gieat many things about Judge Busteed and about his conduct of which I know 
nothing ; whether the statements I have heard in regard to him are true, or result from 


67 

i 

nothing' more than prejudice against him, I know nothing at all of my own personal 
knowledge. 

Q. What has been his conduct towards you.—A. Always respectful. I never had any 
complaint to make. 

By Mr. SEMPLE: 

Q. Will you endeavor to recollect any other instances of arbitrary and dictatorial deport¬ 
ment upon the part of the judge towards any of the members of the bar; for example, 
towards Judge Rice. — A. I have seen him make Judge Rice take his seat. 

Q. Have you seen him do that while he was endeavoring to enlighten the judge upon any 
point under consideration, and in such a way as to cut him off in the progress of an argument. 
—A. I have never known him make Judge Rice take his seat when Judge Rice was in the 
middle of an argument. 

Q. When he proposed to argue a point, have you heard him direct him to take his seat.— 
A. I think I have; it was when he proposed to argue a point which had already been 
decided. 

Q. Decided without argument.—A. Yes, decided without argument. 

Q. When a question had been asked ot a witness, have you heard Judge Busteed, 
addressing the district attorney, say, “Mr. Smith do you object?” “ Yes, I object.” “ Objec¬ 
tion sustained ; exception noted.”—A. I have known that sometimes; I think, in two or 
three instances, in as many cases. 

Q. Have you known it to be done when the counsel proposed to show to the judge that 
the question was a proper one, and asked him to hear argument upon it.—A. I have known 
him, in such cases, say, “ The question has already been decided. Your exception is noted. 
You have your exception.” 

Q. Do you know anything else tending to throw light upon any of the charges or specifi¬ 
cations embraced in the pamphlet. If you do, please relate it to the committee.—A. Noth¬ 
ing that I am aware of. 

By Mr. Eldridge : 

Q. Do you know anything calculated to give this committee information in regard to the 
charges and specifications of corrupt and improper motives upon the part of Judge Busteed. 
—A. Nothing more than I have already stated. 

By Mr. Woodbridge : 

Q. And we understand you to say that in your judgment his conduct was not influenced 
by a corrupt or improper motive.—A. I say that I know nothing that would authorize me to 
pronounce the opinion that his conduct was influenced by improper motives. 

By Judge Busteed : 

Q. Do you know, or not, that members of the bar, especially of the middle district, and 
particularly Henry C. Semple and Judge Stone, of Montgomery, have been in the habit of 
contributing to the Montgomery Mail the most abusive articles about me.—A. I do not. 

Q. Have either of these members of the bar ever told you they had written any article 
which was published in the Mail about me.—A. Neither of them. 

Q. You know that the Montgomery Mail is persistent in publishing articles intended to be 
severe in their detraction of me.—A. I do. 

Q. You know it has called me by every conceivable term of reproach which its ingenuity 
could apply.—A. It has been very abusive. 

Q. Do you know whether the Montgomery Mail is or is not a potent influence in the State 
of Alabama in the formation ot public opinion.—A. I should say it was. 

Q. Watts and Troy are father-in-law and son-in-law.—A. Yes, sir. 

Q. The Watts to whom you refer was governor of the State during the rebellion.—A. 
Yes ; the latter part of the time. 

Q. Do you recollect the case in which you said that both Watts and Troy were ordered to 
take their seats.—A. I think it was the case in which Governor Watts retired from the court 
one day. 

Q. And which was followed by a correspondence between Governor Watts and myself.— 
A. I think so. 

Q. Did you see that correspondence in print. —A. I do not recollect that I did. I saw 
your note, which was shown me by Governor Watts; I also saw the reply, which he told me 
he intended to send. 

The following letter was read by Judge Busteed to the committee, namely : 

“Montgomery, Alabama, May?, I, 1837. 

“ My Dear Mr. Watts: I certainly did not hear you announce your determination to 
withdraw yourself from practicing in the district court, and if it is certain, I would (as this 
moruino’’s Advertiser says I did) have decided the announcement ‘out of order.’ 

“ To "avoid all misapprehension on the subject, I issue this mandate requiring you to revoke 
any such intention, if it exist. I cannot spare you. Your usual genial manners and your 


68 


professional learning make your companionship very desirable, and although you and I differ 
as to how lawyers and judges shall respectively conduct themselves in court, this need not 
provoke personal unkindness, and on my part shall not, 

“Respectfully and truly yours, 

“RICH’D BUSTEED. 

“Thomas H. Watts, Esq.” 


“Montgomery, Alabama, May 31, 1867. 

“ Dear Sir : I have just received your letter of this date. 

“I did not retire from the district court yesterday on account of any difference ot opinion 
‘ as to how lawyers and judges shall respectively conduct themselves in court.’ I retired 
because I considered your manner and language to me, on the trial of the case ot John 
W. Harper vs. Graves and others, as rude and insulting, and I feared that I might under 
such provocation neglect to manifest the accustomed respect which I have always deemed 
due and have awarded to courts of justice. 

“ Your note to me this morning assures me that no personal unkindness to me was intended, 
and I, therefore, shall revoke the intention I had formed, and shall resume my duties in court. 

“The rights of my clients ought not to be sacrificed by any considerations personal to 
myself. It would ill comport with the candor of my nature were I to omit to say in this 
communication that your manner in court tow T ards not only myself, but to the members of 
the bar of your court, is not such as we have been accustomed, State or federal, and to say 
the least of it, is unpleasant. 

“Respectfully, your obedient servant, 

“T. H. WATTS. 

“Hon. Richard Busteed, Judge , ftc.” 


Q. Is that the correspondence to which you refer.—A. Yes, sir. 

Q. Troy is a gentleman pretty irascible in his manner, is he not.—A. I do not think he is 
irascible, precisely ; he is a man very persistent in his manner. 

Q. Is not his manner very well calculated to provoke opposition in the mind of a person 
opposed to him ; state what his manner is.—A. It is very difficult to state it; his manner is 
not as pleasant and respectful as that of many others ; there is a great difference in manner. 

Q. You were the attorney of Johnson in the case of the United States vs. Johnson and 
Morris; were Johnson and Morris partners.—A. No, sir. 

Q. How did they become claimants together for this cotton—A. Johnson was a ware¬ 
house keeper, and took possession of the 1^0 bales of cotton for the purpose of paying him¬ 
self the storage upon a very large amount of cotton which had been stored with him by an 
agent of the confederate States, and for some purpose he put it into the hands of Morris, who 
sold it. 

Q. Had Morris himself any property in that cotton.—A. My recollection is that Morris 
claimed in that transaction as the agent of Johnson. 

Q. Did not Morris claim a part ownership in the cottou at one time.—A. I am unable to 
answer that question ; my recollection is that he claimed as the agent of Johnson; whether 
he made any individual claim or not, I am not certain. 

Q. Was not Henry C. Semple present at the argument in May, 1868, in the case of Stan- 
wood vs. Turner, and did not Judge Rice, his partner in the practice of law, argue against 
the injunction and against you.—A. Yes, sir ; there were two or three motions made before 
you, and he was present at one of them I know ; whether he was present on all the occasions 
or not, I am not sure. 

Q. At the argument which took place at J. Q. Smith’s new house, was he not present.— 
A. I am not sure upon which occasion it was, but he was present at J. Q. Smith’s house on 
one occasion when argument was had upon the motion. 

Q. Do you recollect whether Mr. Semple was present during the argument of Rice and 
Watts upon the question of jurisdiction, when these affidavits weie read in the case of Stan- 
wood and Turner.—A. I think he was. 

By Mr. Semple : 

Q. Do you remember whether I was merely present, or present and taking part in the 
case.—A. My recollection is that you were in the room at the time alluded to, and made 
some suggestions to the counsel, or, at least, had some conversation with Judge Rice. 
Apparently, Watts and Rice were managing the case, and I do not know that Mr. Semple 
took any active part except in making a suggestion while the argument was going on. 

Q. Do you remember whether, upon the occasion when I was present, Judge Busteed did 
not say to Governor Watt, “ I am in such a state of health that it is impossible for me to sit 
and hear a long argumeut; you must confine yourself to 20 minutes or half an hour,” or 
something to that effect; and that Governor Watts replied that he could not argue the ques¬ 
tion in that time.—A. Judge Busteed said that such was the state of his health that he could 
not listen to a long argument; limiting, 1 think, the time to be employed. Governor Watts 
said he would not undertake to argue it within that time. My recollection is that Judge Bus. 


69 


teed, then, told him to take his own time; but that, after that, Governor Watts did not argue 
it at all. My recollection is that Mr. Semple was present upon that occasion. 

Q. Was not the greater part of the time taken up in the reading of the affidavits of a lot 
of men, about the situation of the buildings, and the question as to whether Turner had 
made misrepresentations about the buildings or the land. (Judge Busteed said he admitted 
that three hours were taken up in the reading of the affidavits in the case.) You were asked 
in relation to the character of articles in the Montgomery Mail; do you remember about the 
time the memorial was introduced into Congress seeing it printed in the Montgomery Mail.— 
A. Yes. 

Q. Do you remember the editor’s stating, accompanying the memorial, that Mr. Semple 
had received a message from Judge Busteed. that he would take care of it and him ; and that 
Mr. Semple had authorized him to reply, that if Judge Busteed desired to “take care of him,” 
and would sue him in the city of New York, he would accept the service of the writ; would 
waive all question ot its being a privileged communication, and would pay a $500 fee when¬ 
ever the case went to the jury.—A. I have heard such a circumstance spoken of; I do not 
remember ot reading it. 

Q Have you anything else to say in relation to these charges and specifications which 
you would like to state to the committee.—A. Nothing that I can remember. 

Washington, D. C., January 8, 1869. 

John A. Cuthbf.rt sworn and examined by Mr. Smith: 

Question. Did you act in any capacity connected with the circuit or district court of the 
United States at Mobile, Alabama; if so, what was that capacity and when did you so 
act.—Answer. I acted as the assistant cleik of that court, district and circuit. 

Q. From what time.—A. From about the 15th or 20th of November, 1865, until about 
the 15th December, 1867. 

Q Were records of the proceedings regularly kept, the minutes of the court, the judgment 
entries.—A. They were not kept regularly as the proceedings occurred in the court; but, so 
far as I know, they were all entered correctly in the end. 

Q What was the condition of the record a part of the time.—A. There was a period of, I 
think, somewhere about six weeks when no minutes were made up—written out. 

Q. Were important proceedings taking place every day in the court during that time.—A. 
Yes, sir; the court sat most of the time, day after day; there may have been some days on 
which the court did not sit during that time, but it was in session through most if not the 
whole of that period. « 

Q How were the minutes finally made up.—A. They were made up by me, principally 
from notes of the testimony and of the decisions in the cases made by Judge Busteed, 
brought to me by Mr. Worrell, the principal clerk. 

Q. What attention did the judge pay, while you were acting as deputy clerk, to the min¬ 
utes of his court.—A. He paid no attention to them that 1 was aware of. 

Q. Were they ever read in court.—A. No, sir. I remember one paragraph—one decree 
in admiralty, which was read to him, by his direction, and that is the only portion of the 
minutes which I knew to have been read to him or by him. 

By Mr. Churchill: 

Q. During that period.—A. At any time. 

By Mr. Smith : 

Q. Were large admiralty cases in the court during that time —A. Yes, sir. 

Q. Large salvage cases.—A. I recollect that some portion of the minutes which 1 had to 
make up in the way I have described related to the salvage cases in respect to the cargo of 
the steamer Natchez. 1 cannot say that with absolute certainty, but to the best of my recol¬ 
lection. 

Q. Do you remember Judge Busteed, on any occasion, having had a false entry made in 
reference to the prosecution of Judge Horton, in respect to the ruling as to the admissibility 
of an affidavit.—A. I know nothing of any action of Judge Busteed in relation to that. The 
minutes are false in that particular. 

By Mr. Eldridge: 

Q. In what case is that.—A. The case of the prosecution under the civil rights bill of 
Jud <?e Horton for inflicting a punishment on a colored man different from what he would 
have inflicted on a white man for a like offence. That was the substance of the accusation. 

Q. In what respect are the minutes false.—A. The defendant sought for a continuance on 
account of the absence of Colonel Dimon. He was required to make affidavit of what Col¬ 
onel Dimon would swear to if he was there. The affidavit w r as made, and it was admitted 
on the part of the prosecution that if Dimon were there he would swear to the facts stated 
in that affidavit, but the question of the legality of the evidence w r as distinctly reserved at 
the time. When the defendant was on his defence that the affidavit was offered, and was 
objected to as containing illegal evidence—evidence not pertaining to the issue, and was 
rejected by the court, and not allowed to go to the jury. As to the particular in which the 


70 


minutes are false, tliey state that that affidavit was submitted to the jury as evidence. I 
have a very particular recollection of the matters in that case, because I was requested to 
report it for the Mobile Register, and did so, and I have a very clear and distinct recollec¬ 
tion of the matter of which I speak ; and having heard something in relation to the minutes 
mentioned, on the day on which I left Mobile, I looked over those minutes and found that 
they stated that that affidavit was submitted to the jury. 

Q. Who made those minuees —A. I do not know, sir. I only know that I found them 
as the minutes in the custody of the clerk. 

Q. Were they in onp of the books of the clerk.—A. They were in one of the books of the 
office, a large thick folio, in which I had written out minutes previously, while I was acting 
as assistant clerk; a book kept for constant use for the minutes of the court. 

Q. Was it the place where minutes were made of the proceedings in court usually.— 
A. Yes, sir. 

Q. On the day that that case was brought who acted as clerk.—A. Mr. Trimble is the 
name of the clerk, but I don’t know who performed the different labors of the clerkship. 

Q. Did he preside as clerk on that day.--A. I do not know; I had no connection with the 
clerk’s office at that time. 

Q. Were you in court that day.—A. I was. I was in sight of the person who sat at the 
clerk’s desk and performed the duties, but I do not remember who it was. 

By Mr. Churchill: 

Q. In whose writing was this false entry that you speak of made.—A. I am not sure that 
I know; I know the handwriting of Mr.Trimble, as he writes sometimes, but I think his 
hand varies a little. Mr. Skates had been writing in the office some months, but I do not 
know his writing and I am not able to state in regard to it with certainty. 

Q. Do you know Judge Busteed’s handwriting.—A. I have been familiar with it and 
should know it. 

Q. Was it his handwriting.—A. No, sir. 

By Mr. Smith : 

Q. By the “proceedings ” of the court, you mean the daily entries—the minutes that are 
kept by the clerk—in which the judgments are entered up, and where the proceedings are 
kept as matter of record.—A. Yes. sir; it is not what we call the linal record, it is the daily 
record, a book which is preserved for future reference and from which the final record is 
made up. With us it is simply called the minutes of the court; we do not call it the jour¬ 
nal of the court, but simply the minutes. • 

Q. If a judgment is rendered, that judgment is entered in that book.—A. It recites the 
opening of the court, what was first called in the court, and what was done. It is the reg- 
uiar record of what occurs in the court, including trials, decrees, &c. 

Q. Did you ever know Judge Busteed to make any minutes at all upon that book.—A. 
No, sir; there is no entry made by him in that book. 

Q. It is the only place where the judgment and proceedings of the court, as distinct from 
the pleadings, are entered until they are brought together in one general record, where the 
pleas, declarations, and judgments, are all entered.—A. Yes, sir; it is a book for daily use 
while the court is in session. 

By Mr. Churchill : 

Q. Is that book submitted by the clerk to the judge for his inspection from day to day, or 
at any time.—A. I have never known it to be so; never known it read to Judge Busteed. 

Q. Previously, when Judge Campbell, and Judge Jones, and Judge Cale, presided in the 
United States district and circuit courts there, previous to the war, and also according to the 
universal custom in the State courts, is it read every morning from the clerk’s table to the 
judge when he takes his seat, before he opens the court. 

Judge BiJisTEEi). I object to evidence of the practice of those judges, as having nothing 
to do with the question to be determined here, whether I have been corrupt in the exerci,-e 
of my office. As it may perhaps save time, I will admit that the practice of reading over 
the minutes of the court in the way described was never adopted by me, because I had never 
seen such a practice in the city of New York, where I had practiced law for 21) years 

Witness. It was the uniform custom under those judges to have the minutes of the pre¬ 
ceding sitting read at the opening of the court in the morning. 

Q. How was it in the State courts.—A. In the State courts also that has been the universal 
custom, so far as I know the practice of the State courts. 

Q. In the regular course of things, from what are these record entries made.—A. I cannot 
speak of that, only from my own practice; I have not observed particularly how others 
made up their minutes I kept a memorandum book before me while the court was in ses¬ 
sion, on which I made entries in pencil of w hat w r as occurring, and from those pencil entries 
and from the entries made by the judge on his docket, I made up the minutes. Sometimes 
there were particular documents to be entered upon the minutes, and 1 may then have used 
the oiiginal documents. 


71 


By Mr. Wilson: 

Q. Did the attorneys in any given case ever prepare the entry which went upon the 
record.—A. According to our course of business it was considered as the privilege of the 
attorney to do so if he thought proper ; but it was very seldom while I was connected with 
the cletk’s office that an attorney made an entry ; that is, wrote it out on a separate piece 
of paper for the clerk to copy in the minutes. 

Q. It was done sometimes.—A. It was done sometimes. 

By Mr. Smith : 

Q. Were those entries submitted to the judge, and did he put “ R. «B.” at the bottom of 
them before they were entered.—A. When decrees, or anything having the bearing or force 
of a decree, a judgment or order of the court in some special matter, was entered, Judge 
Busteed directed that I should not enter it on the minutes without having his name or initials 
at the foot of it; and that was my practice. 

By Mr. Woodbridge: 

Q. That was where a final judgment or decree was entered.—A. Yes; final unless reversed. 

By Mr. Smith : 

Q. The judge kept his docket before him, and called his cases.—A. Yes, sir. 

Q. What has been the habit of the judge as to entering there in brief what he does; I am 
not speaking of Judge Busteed’s habit, but of the habit of the court. You were clerk of 
that court for many years.—A. About seven years. 

Q. Did you keep these pencil memoranda that you have spoken of when you were clerk 
for Judge Campbell or Judge Jones ; or did you rely on their entries on the docket —A. I 
kept those pencil memoranda from the time of my going into that office before the war. 

Q. Why was it that for six or eight weeks in the spring of 1866 no judgment entries were 
made.—A. I think it was a casual omission of the principal clerk. I had asked him whether 
he preferred that I should remain in the court-room and attend to the minutes, or remain in 
the clerk’s office and do what writing was needed there; and he said he preferred that I 
should remain in the clerk’s office and do the writing there, and that he would attend to 
what was done in court and keep the minutes; but I observed time after time that the min¬ 
utes were not made up, and, thinking that serious difficulty might grow out of it, without 
saying anything to him I commenced the work of making up the minutes. He saw what I 
was at, and I got him to procure for me what material he could from Judge Busteed—the 
notes that Judge Busteed had made, from copious notes of the testimony, and generally of 
the decisions, in his manuscript books. 

By Mr. Woodbridge: 

Q. And from those you wrote out the proceedings of those six weeks —A. From those, 
with the assistance of the dockets, and sometimes I would get hold of some papers which 
would indicate to me something that ought to be entered in the minures. I believe the min¬ 
utes were made out so as not to omit anything; but it repeatedly happened that I would 
come to something that ought to have been entered in the minutes of a day previous to the 
one before me, and I would enter it then as nunc pro tunc , giving it the proper date. 

Q. Did you call Judge Busteed’s attention to this negligence of the clerk.—A. No, sir. 

Q. Do you know whether he had any knowledge of it.—A. I do not know, sir. 

Q. Did you procure any poition of the records from which you made up these items from 
Judge Busteed yourself.—A. I don’t think I did, directly from him. Mr Worrell brought 
me the judge’s little manuscript books of the notes that he had taken of the testimony and 
decisions. 

By Mr. SiMiTii: 

Q. If you looked on the docket of the court or on the minutes during those six weeks, 
could you, or could any suitor, tell from them what had been done in the court.—A. Besides 
the title of most of the cases there was an entry made by the judge of the date ot judgment, 
trial, or something of that kind. Beyond that, the docket furnished nojnformationin whose 
behalf it was made. Sometimes it would indicate the amount of the judgment. 

Q. Could the public, or anybody, have got at a knowledge of what was going on in that 
court from anything that they could have had access to during that time —A. I hey might 
have got some knowledge, but it would have been a very incomplete knowledge of the pro¬ 
ceedings. 

Q. Did you make up these entries after or before the term ended.—A. I think they were 
completed before that term ended, but I do not recollect distinctly. 

Q. Early in the business of the court arose a number of salvage cases.—A. Yes. sir. 

Q. Do you know of propositions being made by the claimants of the property to give 
bonds, stipulations in admiralty, for the payment of such decrees as might be tendered, and 
do you know of Judge Busteed’s having said anything in relation to his determination 
respecting those things—respecting the allowing such bonds to be given, and why he ref used 
to do so, if he did refuse.—A. I know by hearsay. I think there was a good deal of dis- 
elusion in the court—something in relation to bonds being offered. I know that Judge 


72 


Bustced expressed a determination that wherever property was seized by the operation of his 
court he would have it sold, so that the officers of the court might receive their fees. 

Q. Did he say anything about what had been the custom or practice of the court, and his 
determination to overturn it.—A. Yes. He said that the attorneys of the court had estab¬ 
lished a custom of bonding property where there was litigation, and that he would not per¬ 
mit it. I do not recollect the exact words, but something equivalent to that. 

Q. To what class of suits did that relate.—A. I think there were salvage cases under 
consideration at the time such language was used. There w r ere salvage cases and there 
u ere confiscation cases—cases where cotton was seized as having belonged to the confed¬ 
erate government, and proceedings were instituted to confiscate it; but I do not recollect 
with certainty whether the one or the other class of cases was under consideration at this 
time. 

Q. His language applied generally; did it.—A. Yes, sir. 

By Mr. Eedridge : 

Q. When and where was that language used.—A. It was during the spring of 18(56, but 
I cannot recollect the exact time or place. 

Q. W T as it in court or out of court.—A. It was not in the court. I think it was in the 
clerk’s office, but I am not certain. I do not recollect that I conversed with Judge Busteed 
anywhere but in the clerk’s office. 

By Mr. Woodbridge; 

Q. Judge Busteed made these statements to you, did he.—A. Yes, sir. 

By Mr. Smith : 

Q. Did you know of applications in admiralty cases, salvage cases, having been made by 
the consent of both parties, claimants and salvors, to give stipulations, and of their being 
refused —A. No, sir. I had no personal knowledge of that. 

Q. You do not remember what was done in the Natchez cases in that respect.—A. No, sir ; 
T have no recollection. 

Q. Do you know Jacob Wilson—A. Yes, sir. 

Q. What relation did he bear to Judge Busteed.—A. I have seen him acting as servant of 
Judge Busteed. X do not know that he was employed by the judge as servant; but I have 
seen him in attendance about his person, and I infer that he was his body servant. 

Q. From what did you infer that.—A. I have called at the judge’s and have seen him 
come to the door in his shirt sleeves and open the door for me; I have seen him carrying 
baskets of refieshments into the Judge’s private room which he occupied as an office. A part 
of the rime Judge Busteed was in Mobile; his family were with him, and during that time I 
have seen him carrying things evidently for the judge’s family, and iu the absence of his 
family, as I have said, 1 have seen him carrying refreshments into his room. 

Q. Where did he generally stay when he was there.—A. I do not know that I can answer 
that question exactly. When the judge was living in Mobile with his family, I do not think 
I saw him anywhere except while he was about the office or court room, or iu carrying pack¬ 
ages, or something of the sort, and at the judge’s dwelling. 

Q. State if you know anything of the suitors of the court being invited by Wilson to visit 
the judge, and whether or not you had auything to say to them on the subject, and whether 
the judge said anything to you on that subject at all about it.—A. What I would have to 
answer to that question would not be in direct response to the question. I know matters of 
fact connected with it. There were many admiralty cases on the docket in reference to which 
Mr. Martin, the district attorney, had agreed to make settlements with the claimants, they 
paying certain amounts to himself, and the regular costs to the clerk and marshal. 

By Judge Busteed: 

Q. When you speak of Mr. Martin you mean the man who shot me.—A. Yes. One of 
these claimants came to me with Wilson, and told me the judge had sent for him. I told 
him it must be a mistake: that I did not believe the judge had sent for him. He said yes ; 
Wilson said the judge had sent for him; but, acting upon the opinion which I expressed 
to this man, he did not go to the judge. I inferred that Wilson reported to the judge 
what I had said. The judge came into the clerk’s office a few minutes afterwards, and re¬ 
buked me for having prevented persons whom he had sent tor from coming to him. I did 
not believe the judge had sent for the man. 1 knew that Wilson was a very intermeddling 
man, and I thought he was trying to raise some difficulty between Mr. Martin and the judge 
in relation to the case, for I knew there was an unlriendly feeling between Mr. Martin and 
Judge Busteed at that time. When the judge charged me with preventing men he had sent 
for from coming to see him I denied that I had done so. I stated what had occurred, and 
that I thought there was a mistake. He said no, Wilson never makes mistakes; that he 
wished to see this party, and have him come to his office. 

By Mr. Woodbridge: 

Q. Who was this man.—A. I know him very familiarly, but I cannot recall his name. 
He is now in some mercantile business in New Orleans. 1 have known him a long time, but 
his name does not occur to me. 

Q. Did he have a suit pending in the court.—A. He was a claimant in one of the steam¬ 
boat suits then pending. I do not remember the name ot the boat. 


73 


By Mr. Smith : 

Q. Do you know anything of other people frequenting the judge’s chamber.—A. I know 
theie weie frequent visitors there. I know that some ot the suitors of the court were visitors 
there. The only person 1 recollect the name of now is Moses Waring. I have an imperfect 
recollection of other suitors visiting his chamber, but. I cannot recall the names. 

Q. Was Moses Waring connected in any way with the case known as the wharf case.— 
A. Yes. I am not sure whether he was a libellant or not, but he claimed to have a large 
interest. 1 remember this man living for a long time with a merchant by the name of 
Tuart. I refer to the man who said Wilson informed him that the judge had sent for him. 

Q. When Judge Busteed came to Mobile, who, if any one, came with him.—A. When he 
came to conduct the business of the court, in the latter part of 1865. Mr. Wilson came with 
him, or he was with him immediately after he first came to Mobile. 

By Mr. Eldridge : 

Q. Was Wilson, previous that time, a resident of Mobile.—A. No, sir; he was a stranger. 
Mr. Lawrence Worrall and Rufus Andrews came to Mobile with the judge. 

Q. What position in the courts did Worrall assume at first.—A. He was clerk of the dis¬ 
trict and circuit court, appointed by Judge Busteed, and was afterwards district attorney 
under the appointment of Judge Wayne. 

Q. When he was district attorney who was clerk.—A. He was clerk also. He filled both 
offices. 

Q. What was Mr. Andrews’s business.—A. He was a professional lawyer. 

Q. Was he known in Mobile at all up to the time he came with Judge Busteed.—A. I had 
not heard of him before that time. I think he may have been with Judge Busteed in Mo¬ 
bile in August; I do not remember certainly. 

Q. Had he any previous reputation in Mobile as a lawyer.—A. He was not known in Mo¬ 
bile as a lawyer. 

Q. Where did Worrall and Andrews take their offices; what relation did they bear to the 
judge’s office in point of locality.—A. They occupied an office together on the same floor 
with the judge, across the entry which was at the head of the staircase. The judge’s office 
was at the southwestern corner of the third story of the custom-house, and their office was 
at the northwestern corner upon the same floor. 

Q. W T as that in a locality in which lawyers had their offices before.—A. No, sir; it was 
on the third story. 

Q. Was there any library in the room.—A. I think not; there was a little library belong¬ 
ing to the court in the next adjoining room. You could hardly call it a law library. It 
contained the laws enacted by Congress, the journals of the two houses and public docu¬ 
ments which had bean printed by order of Congress, and matters of that kind, a very large 
collection. There were no books on elementary law or reports. 

Q. What were the relations existing between these gentlemen and Judge Busteed.—A. 
Judge Busteed admitted that the relations between Rufus Andrews, Lawrence Worrall, and 
himself were as intimate as the relations of any three men could be; that they were most 
intimate and friendly in their character. 

Q. How were the bills of costs in these courts taxed wdiile you were acting as deputy 
clerk, as compared with the fee bills allowed by the laws of the United States.—A. Most if 
not all the items were above the fees allowed by the act of 1853. I taxed them under the 
direction of Mr. Worrall. He gave me instructions, which I followed. 

Q. How much above were they.—A. Some were, I think, 50 per cent, above, and some 
much larger than that. A stipulation in admiralty was taxed, I think, $3 25, or $3 75, 1 do 
not recollect which. The fee under the law of 1853, I think, was $1 ; I do not remember 
certain. It was the custom to attach a seal, for which, under the law of 1853, 25 cents were 
allowed in addition. 

Q. Was that taxation of costs a general thing.—A. Yes ; I asked him to give me directions 
stating to him that bis rates were different from those before acted on. 

By Mr. Eldridge : 

Q. Was the direction given you the same in all cases.—A. Yes, there was no discrimina 
tion. 

By Mr. Smith : 

Q. State whether or not Mr. Andrews obtained a large practice in the court.—A. He did 
not obtain a large practice; he had some connection with large cases. 

Q. Did he appear alone or in connection with other gentlemen.—A. I always understood that 
he and Mr. Worrall were associated. I cannot say that I knew this fact. It was my under¬ 
standing from what passed in my presence that they were associated. I am not able to say 
that they were partners. 

Q. Who are the leading gentlemen of the Mobile bar. State their character as to ability.— 
A. Peter Hamilton, who is here in the city, Judge Jones, Dargan & Taylor, J. Little Smith, 
Judge McKinstry, Mr. Anderson, and Manning & Walker are among those who are con¬ 
sidered eminent in the profession, and who have -long been engaged in the practice there. 
Judge Dargan is an ex-chief justice of the supreme court of Alabama. 

Q. Was Andrews employed pretty soon after he came there in cases of importance.—A. I 


74 


am not able to specify cases in which Mr. Andrews was employed; I know that he was 
engaged in some cases of importance. 

Q. In the trial of causes what part did Andrews generally take.—A. I never knew him 
engaged in any elaborate argument. There were some passing arguments he would engage 
in, but I do not recollect anything that indicated an elaborate preparation or learning upon 
his part. 

Q. Do you know of any cases in which he was concerned having been decided adversely 
to his client.—A. I cannot recollect any case which was decided adversely to him ; I believe 
the cases in which he appeared were all decided in his favor; I do not know that any case 
was erroneously decided in his favor; I do not recollect that the thing underwent any careful 
consideration by me; I know that as a general thing he was very successful with the court. 

Q. Did Worrall at any time make any statement to you in reference to whether or not he 
and Andrews divided all the moneys they got with the judge.—A. I will state the occasion of 
the conversation: I had been in the employment of Mr. Worrall as assistant clerk withotit 
any special agreemeqt between us as to what my compensation should be ; now and then he 
suggested to me to keep certain fees paid in; I proposed to him that we should come to some 
specific agreement, and he offered me a certain sum, $100 per month. I thought he was 
receiving a large amount, and I was unwilling to receive that sum for the services I was ren¬ 
dering; 1 performed almost exclusively the duties of clerk. He said his pecuniary condition 
was not as prosperous as I had supposed; that all he and Andrews got went into a common 
fund for the support of the family, (he and Andrews were living with the judge at that time,) 
so that he could not afford to be as liberal as he otherwise would ; I do not think that Judge 
Busteed’s family was named by Mr. Worrall in that statement, but as Judge Busteed him¬ 
self and Mr. Andrews formed a part of the same family at that time I supposed that was 
what he referred to. 

By Mr. Eldridge : 

Q. When and where was that conversation.—A. That was some time in the early spring 
of J8C6 in the clerk’s office. 

Q. Who was present.—A. No person except Mr. Worrall and myself: it was a private 
conversation between us. 

Q. Were Judge Busteed, Mr. Andrews, and Mr. Worrall then living together in the same 
house.—A. Judge Busteed’s family was there, and it was understood to be his residence; 
these other gentlemen staid with them. 

Q. Who composed Judge Busteed’s family.—A. He had a wife, two daughters, undone 
son, I think. 

By Mr. Smith : 

Q. Have you any idea what amounts of money were collected while you were there, in the 
shape of costs and money, that went upon the execution docket, that the record of the court 
showed.—A. I could not make an estimate with any accuracy. It was a considerable 
amount. I had made an estimate in a general way, calculating the amouut we received in 
the course of six months. We settled at the end of the first six months, and I estimated that 
in six months he had received some seven, eight, or nine thousand dollars; but my calcula¬ 
tion was not on any precise data. There were considerable amounts of money coming into 
the clerk’s office from cotton that was sold under the order of the court—cotton which was 
brought into the jurisdiction of the court for salvage and sold, and the moneys received on 
such sales paid into court. The clerk received a certain commission on the sales. Then he 
had the ordinary costs, which I computed, and stated the aggregate sum as I have said. 

Q. Were you present at any inquiry instituted before the judge by Peter Hamilton o,. 
others, in reference to the enormous rates of costs exacted by the officers of the court.—A. 
No, sir; I was not present when anything of that kind occurred. 

Q. Did you know of any writ issued in that court for the seizure of the records, books, and 
papers in the possession of the agent of the Treasury Department.—A. I know of an order 
from that court for the seizure of books and papers in the hands of Mr. Tomeny and others. 

Q. Please read the order now shown you, and say whether it was the one you refer to.— 
A. I have not such recollection of the order as to enable me to say whether or not this is an 
exact copy of it. I know there was an order brought to me to be entered on the records, 
signed by Judge Busteed, of general character of what is contained in this order for the 
seizuie ot the lecoids, books, and papeis ot these parties. I remember the same names o’iveu 
here as persons from whose possession they were to be taken. I have no doubt it was the 
same order. The following is the order referred to: 


“ The United States 


vs. 

062 bales of cotton. 


In the United States district court for the southern district of 

Alabama. 


“To the marshal of the United States for the southern district of Alabama, and to his deputies , 

and to either or any of them: 

“ lou are hereby required to seize forthwith, and take into your custody, all records, books 
and papers within your district pertaining or in anywise relating to cotton belonging or 


75 


sRid to belong Rt Rny time to the so-called Confederates States government; also all records, 
books, and papers, wherever the same may be found in said district, relating to the seizure, 
detention, release, purchase, sale, transfer, shipment, or other disposition of any cotton 
whatever in the possession or under the control of any of the persons or firms hereinafter 
named, their predecessors in office, or their successors or representatives, or the subordinates 
of either, such records, books, and papers being, as 1 am advised by the United States dis¬ 
trict attorney for this district, material and necessary upon the part of the United States in 
this and certain other actions now pending and undetermined in this court, and that such 
records, books, and papers are essential to protect and sustain the interests of the United 
States in said actions and in other prosecutions to be instituted for and upon the behalf of 
the United States. 

“ You will seize and detain in your custody such of said books and papers as are in the 
possession or under the control of J. M. Tomeny, S. E. Ogden & Co., J. J. Dillon, A. A. 
Winston, C. J. and R. G. McMahon, C. M. Roberts, Waring & Windham, Watson & Co., 
Pepper, Berry & Co ; and if any of said records, books, and papers should be found in the 
possession of any other person or persons, you will seize and safely keep the same in your 
custody until the further order of the court. And for this, this will be your sufficient warrant. 

“Witness my hand, at the city of Mobile, this 21st day of April, 1866. 

“RICHARD BUSTEED, 

“ United States District Judge for Alabama .” 


Q. What was done under that order.—A. Jacob Wilson brought into the clerk’s office a 
number of books which I do not think I was told were the same, but somehow or other I 
knew it to be the books and papers seized under that order; they were deposited in a small 
room Adjoining the clerk’s office, of which Mr. Worrall kept the key ; they remained there 
some time; a portion of them were then carried to the room which Mr. Worrall and Mr. 
Andrews occupied as their office. 

Q. Who was James Tomeny.—A. He was an agent of the Treasury Department of the 
United States in relation to cotton. 

Q. Did Jacob Wilson act in any other capacity than as the menial of Judge Busteed.—A. 
He acted as deputy marshal under Mr. Hardy, and continued to act as deputy under Mr. 
Healy, after. Mr. Hardy’s removal. 

Q. Do you know whether Mr. Healy ever appointed him.—A. I do not know ; I only 
know that he acted as deputy marshal when Mr. Healy was there, for, I suppose, three or 
four or five mouths. 

Q. Do you know of any order having been made in court for the restoration of these 
books and papers.—A. 1 do not think I have any knowledge of such an order. 

Q. Were you present in court when any order was made in which 454 bales of cotton 
was involved as a part of the cargo of the lighter steamer Natchez, which was sunk.—A. 
I was present in court when a great deal was done in relation to that order. I do not recol¬ 
lect the specific order now. 

Q. Is what I now show you the order referred to.—A. I remember such an order being 
made. 

The order referred to is as follows: 


“ District court of the United States, southern district of Alabama.—In admiralty. 

“ Charles C. Newberry vs. 6(5 bales of cotton; William C. Piggott vs. 27 bales of cotton ; 
and others, against sundry bales of cotton, part of the cargo of the lighter steamer Natchez. 

“In these cases, which hove been consolidated , a motion is made by the claimants for the 
delivery to them on stipulation of the property described in their respective claims, and Mr. 
R. F. Andrews appears, in behalf of the United States, to oppose said motion. Proof being 
made to the court that the property libelled, and now in possession of the United States 
marshal, is in a peiishable condition ; and that certaiu of said property, to wit, 227 bales of 
cotton, before its shipment on the Natchez, bore the proprietary marks of the United States, 
and was in good order and sound at the time of said shipment, and that these marks were 
erased and others substituted ; and it being suggested to the court that identification of said 
cotton, by the submergement thereof in the waters of the bay, has been rendered difficult, it 
is ordered that 454 bales of said cotton, of the average condition of the whole, without regard 
to marks , be retained by marshal, and be sold by him under the rules of the court and the 
direction of Mr. Andrews, and the pioceeds theieof be paid into the registry of the court, to 
abide the final decree in the cause. 

“It is ordered mat the remainder of said cotton be delivered to said claimants, according to 
their respective claims, upon their entering into stipulation therefor, with satisfactory secu¬ 
rity, to be approved by the cleik of the court, at the rate of $15U per bale, conditioned as 
directed by the rules of the court. 

“RICHARD BUSTEED, 

11 United States District Judge of Alabama .” 


76 

Q. What, was done with that 454 bales of cotton.—A. I do not think I have any personal 
knowledge of what was done with it. . 

Q. Were you in court when Judge Gnstavus Horton, mayor of Mobile and now judge 
of probate of Mobile, was tried.—A. Yes, sir; at the time he was tried he was mayor of the 
city by military appointment. 

Q. Were you present when he was tried before Judge Rusfeed.—A. I was at court. 

Q. What was the conduct of Judge Bus teed-, upon that occasion, to the attorney who 
defended him.—A. His manner was something like this : he would frequently put questions 
to Mr. Moulton, who defended Mr. Horton, such as would embarrass Mr. Moulton and 
make him at a loss to know what to do. When the affidavit of Colonel Dimon was rejected 
he appeared to be confused and depressed, and Judge Busteed said to him, in what I under¬ 
stood to be a tone of triumph and insult, “Mr. Moulton, have you any other testimony ? 
Mr. Moulton, what will you do now?” and questions of that kind, which were calculated 
very much to embarrass Mr. Moulton ; and he was so much embarrassed that he hardly 
made any effort after that to defend the case. It struck me that he sat there like a school¬ 
boy who had become angry and did not know what to say. Questions were repeatedly put 
to him by’ Judge Busteed in a tone which I understood to be insulting. The case w r as 
tried under the civil rights bill; the charge being that Mr. Horton had discriminated 
against one Archie Johnson, a man of color. 

Q. State whether similar judgments had been made by Mr. Horton, as mayor, and by his 
predecessor in respect to a white man, and whether or not he was allowed to prove that in 
defence.—A. That was the purport of the affidavit of Dimon, to which I referred, that white 
men were convicted of a like offence and sentenced to the same punishment by the defend¬ 
ant, Horton. 

Q Did the judge, or not, allow him to examine the witnesses, generally, in the case.—A. I 
have not any distinct recollection in regard to that. 

Q. Was judge Busteed's charge, in that case, published in the newspapers of the city.— 
A. Yes; it was published in the newspapers of the city. 

Q. Judge Busteed was in town when the publication was made.—A. Yes, sir. 

Q. Where is the paper I now hand you printed.— A It is a Mobile paper, printed in Mobile. 

The charge referred to, having been admitted by Judge Busteed to be correct, was here 
read and placed in evidence, as follows : 

“Gentlemen of the Jury; The accused, Gustavus Horton, is indicted for a misde¬ 
meanor. He stands charged with a violation of a law of Congress passed on the 9th day of 
April, J866, over the veto of the President. This law is entitled ‘An act to protect all per¬ 
sons in the United States in their civil rights, and to furnish the means of their vindication.’ 

“ The first section of the act confers citizenship upon all persons born in the United States, 
except Indians and persons subject to any foreign power. It also declares that the black 
race shall have the same locus standi in the law as white persons, notwithstanding the 
existence of any State legislative enactment to the contrary, and that this equality shall 
extend to the full and equal benefit of all laws and proceedings for the security of person and 
property as is enjoyed by white citizens, and that no black man shall be punished for an 
offence committed by him in any other way, as to kind or degree, than as a white man could 
be lawfully punished for the same offence, if committed by him. 

“ It will be observed that this law was passed nearly a year after the insurrection against 
the United States had ceased. It was not enacted as a war measure in time of war, but as 
a peace measure in time of peace. All the provisions of the statute indicate with great 
clearness the intention of the legislature in passing it. It amplifies the jurisdiction of inferior 
officers; it provides for the creation of any requisite number of executive and ministerial 
agents ; it makes the land and naval forces of the United States conservators of its purposes 
and objects, and it revives the common law as an adjunctive remedy in cases in which it 
may be necessary fully to carry out what it proposes. It declares it to be the special duty 
of district attorneys, marshals, deputy marshals, United States commissioners, and officers 
and ascents of the Freedmeu's Bureau , “at the expense of the Unfed States, to institute 
proceedings against all, any, every person who shall violate its provisions, and to cause him 
to be arrested and imprisoned or bailed, as the case maybe, for trial’ It does more; it 
requires the removal ot the courts of the United States, if need be, from the places in which 
they are usually held to ary other place within the district, in order that there shall be no 
delay in the trial of persons charged with a violation of its provisions. All this that men, 
and especially that black men who had been slaves, should be protected in their rights of 
equality before the law, without distinction of race or color, or previous condition of involun¬ 
tary servitude. The civil rights bill is an acknowledgment of manhood—an expression of 
respectful veneration for the image of the Creator, whether fouud in dusky bronze or in 
parian marble, whether sculptured in ebony or in ivory. It needs neither vindicator nor 
expositor. He who runs may read, and he who wilfully violates so plain a law should bo 
adjudged to suffer its penalties. The national honor was pledged to its passage and the 
national honor is security for its fulfilment. 

“ For an alleged offence against this law Gustavus Horton is now at the bar of this court. 
The case is one of painful interest and of monopolizing importance. It is of indivi lual and 
of general concern. It affects the safety of the citizen and the majesty of the law ; the integ- 


77 


rity of private rights and the impartiality of public justice. Let us approach its considera¬ 
tion with an enduring sense of our responsibility to God. to our country, and to our fellows. 

“And that we may clearly comprehend the whole field I briefly invite your attention to 
the circumstances under which the offence of the accused, if he be guilty, was committed. 
On the 3d day of March, 1867, nearly two years after the surrender of the American insur¬ 
gents, Congress passed an act entitled ‘ An act to provide fur the more efficient government 
of the rebel States.’ 

“The preamble of this act declares that there is no legal State government in Alabama, 
and the statute, in its enacting clauses, provides, among other things, for a convention of 
the people to form a new constitution, and, pro tempore, puts the police power of the State 
nto the control of a military officer of the United States, and allows him, in his discretion, to 
use such civil local tribunals as were in existence in the aid of the powers and duties 
devolved upon him by the law. 

“In December, 1865, Hon. Jones M. Withers, a well-known and highly respected citizen, 
was elected mayor of Mobile for the term of three years. He continued in the discharge of 
the duties of the office without complaint, and acceptably to the people, until the month of 
May, 1867, when he was ousted by an order of the officer in command of the 3d military 
district. By another order from the same officer Gustavus Horton was installed mayor of 
Mobile. He assumed to discharge the duties of the mayoralty, received to his own use the 
salary that is attached to it, and still holds the place. The expulsion of Mr. Withers was 
the subject of much dissatisfaction in the community, and the acts and sayings of the mili¬ 
tary appointee were watched and criticised in no friendly spirit. He was subjected to a con¬ 
stant fire from the daily newspaper press of this city, and made a target for the penshafts of 
such keen and merciless ridicule as these censors know so well how to hurl. If the accused 
had used his office to repel these assaults and gone beyond the limits of his assigned juris¬ 
diction, and were challenged to answer for the act, 1 can conceive of a court of justice 
taking notice of all the precedent annoyance he had endured, and, in tender consideration 
of our humanities and frailties, mitigating the severity of law to the uttermost extent. 

“The case before us, however, is very different from this. Here is a poor, forlorn, igno¬ 
rant human being of African descent—a mental, intellectual, and physical cripple, with only 
one leg, and who can scarce distinguish between right and wrong, whose mind borders on 
idiocy, who is incapable of planning mischief, endeavoring to gain a scanty livelihood by 
selling newspapers in this city, where he resided and was known. He is told—for he cannot 
read—what the newspapers contain. His hue-and-cry are furnished to him, and with the 
innocent recklessness of joyous ignorance he lustily sings his song to the passers-by. With¬ 
out invention sufficient to create, he has memory enough to repeat. 

“ On the 7th of August last, while this man was asleep, at a time when it is not pretended 
he was disturbing the public peace or behaving in an improper manner, in obedience to a 
verbal order from the chief of police to arrest him wherever he might be found, two members 
of the police force did arrest him—one of them taking Archie himself into custody and to 
the guard-house, and the other taking into his custody and to the guard-house an old hat and 
a pair of epaulettes in which Archie had bedecked himself on some previous day. 

“On the 8th of August last this hapless object, arrested without process of law, without 
complaint on oath, in disregard of all ttie forms which the laws declare necessary prelimina¬ 
ries to depriving the humblest among us of his libeity, was taken from the guard-house and 
brought before the prisoner at this bar, then and now acting as mayor of the city, and in 
this capacity exercising jurisdiction over disorderly persons and other offenders against muni¬ 
cipal ordinances, to answer charges to be preferred against him. What followed in the case 
is almost beyond belief. The annals of courts of criminal jurisdiction, so far as I know, 
furnish no parallel to it. It stands alone, as it should stand, solitary in its darkness and 
shame. 

“The hearing of evidence is gone through with by the accused acting as a magistrate. 
Three witnesses, C. A. R. Dimon, John M. Coulon, and David Parsons—all of them police 
officers—confront the. negro. Dimon is examined, but we do not know what his testimony 
was. If it related to anything but the charge of ‘disorderly conduct,’ on the docket of the 
guard-house, it was improperly given and improperly received. Faisons, another of the 
witnesses, and the officer who took Archie int * custody and delivered him to the guard-house, 
it seems was not examined at all. Coulon, the remaining witness of the three, tel s us with 
distinctness and clearness wdiat was proven against Archie on this occasion. Coulon, on the 
stand here, swears he testified that otteu before the 8th of August lie had seen Johnson with 
crowds around him on the sidewalk; that pedestrians were obliged to go into the street in 
order to get by these crowds : that on the 6th of August he saw Archie near the post office in 
this city, dressed in fantastical costume, with the ‘Bromberg hat’ on, and wearing epaulettes, 
and that at this time he was busy selling newspapers. 

“This was the evidence, and the whole of it, before Horton to support the charge against 
Archie Johnson of ‘ disorderly conduct.’ Upon this proof Horton acted; upon it he pio- 
nuuuced judgment and sentence; upon it that sentence was carried into swift and terrible 
execution. A policeman named David Parsons bore the cripple down to the steamer for 
New Orleans and placed him on board of her, with the intention of having him exiled. The 
mate of the steamship put him ashore, but the policeman, in obe lienee to his instructions, 


78 


put liini on board again and kept sentry over him until the vessel stood out to sea. On her 
deck, a cripple, with but one leg, poor, a former slave, this unhappy man was forcibly 
removed from bis friends and his home, from the place where he earned what kept him alive, 
and thrust helpless upon the wide, wide world. No previous inquiry made by the officials 
who ordered bis expatriation whether he had enough to buy himself a crust of bread ; no 
provision made for his shelter in case of a storm ; without food or a bed; exposed to wind, 
water, and rain ; alone—all alone. 

“ I wish we could drop the curtain here; I wish this ‘cruel and unusual punishment 
had ended with the expulsion of the poor African from Mobile to New Orleaus. Alas, that 
the facts of this case should develop what looks like a determined purpose that, whoever else 
was made free by proclamation or by law, Archie Johnson should be held in slavery—a 
slavery more terrible in its harmfulness to him than the servitude in which he was born. 

“The same day he reached New Orleans he returned to Mobile, and on the same vessel 
by which he had been expatriated: but no sooner had he touched these shores than again, 
without process of law, again without complaint on oath that he had committed any crime, 
he is seized by a policeman acting under Horton’s orders, thrown into the common jail, no 
record made of the fact on the jail docket, and at 2 o’clock of the day upon which he got 
home, forcibly taken on board the cars of the Mobile and Great Northern Railroad Com¬ 
pany, carried to Montgomery, thrust into the guard-house of that city, imprisoned in it for 
live hours, taken from there and put into its common jail, and there closely confined for the 
space of three days, and then discharged by order of a military officer. 

“It is proper now to go back to the Hth of August, J867. Before doing so, ask yourselves 
the question—for it is one that you will have to answer—Does the white man live against 
whom all these proceedings dare be taken? Is there any court, no matter how plenary its 
powers—any magistrate, how extended soever his jurisdiction, that would venture to initiate 
and continue such a prosecution against any person who was born a freeman ? 

“ But to the 8th of August, 1867. We have seen that the charge to be preferred agaiust 
the freedman, Archie Johnson, after his arrest of the 7th of August, was a charge of ‘disor¬ 
derly conduct.’ We have seen who the witnesses were and what they testified to. We have 
seen that, at the time of Archie’s arrest, he was not violating any law of the land, and that 
the precedent conduct, which formed the staple of the arrest of the 7th of August, consisted 
in his wearing a hat labelled ‘ Bromberg’s hat,’ and epaulettes on his shoulders ; and, accord¬ 
ing to the photograph which has been put in proof, a breastplate made of the Tribune news¬ 
paper. It is true, also, that policeman Coulon, on being asked whether, in his opinon, the 
fantastic dress of the negro was calculated to excite scandal aud bring a citizen of the city 
into disgrace, and such as would tend to disturb the peace of the city, answered in the 
affirmative. Now, gentlemen of the jury, it is for you to say what weight should be given 
to this opinion of policeman Coulon. It is for you to say whether the tact of an uninformed 
negro, of the lowest grade of intellectual and mental status, wearing an old military cap, with 
a label, upon which was printed the words, ‘ Bromberg’s hat,’ was likely to lead to a breach of 
the peace between the owner of the name ‘ Bromberg’ and Archie Johnson. It is for you to 
say whether his wearing epaulettes, and covering himself with the insignia of his calling, were 
such acts as endangered the peace of this city, with its 60,000 inhabitants and numerous 
police force. If you should be of the opinion of Coulon, aud think that the population of 
Mobile was likely to be excited to frenzy or riot because Archie Johnson wore this hat and 
these epaulettes, and covered his breast with a copy of the Mobile Tribune, it would be 
necessary for me in that case to instruct you that before he could be arrested for this and 
charged with it as and for disorderly conduct, some ordinance of the city or law of the State 
must be found making it an offence for a man to dress in a ridiculous manner. It certainly 
cannot be necessary for me to say to you that to have worn the cap and the epaulettes, and 
to cry out that the newspaper he offered for sale contained all about a public man, and that 
man an official of the city, whose public acts it was the right of the citizens to be made 
aware ot and criticize, is not such conduct as converts an otherwise peaceable and industri¬ 
ous, though poor aud deplorably ignorant citizen, into a ‘dangerous and suspicious charac¬ 
ter,’ within the meaning of those words as they are used in the 21>3d section of the ordinances 
adopted by the common council ot Mobile, and who, according to this ordinance, may be 
forcibly expelled from the city. Aud it is equally certain that neither Dimon, nor Coulon, 
nor Parsons, regarded Archie Johnson as a dangerous and suspicious person, aud the rec¬ 
ords ot the mayor’s court ot the date of Johnson’s first trial, and the testimony of Coulon, 
agree that the charge made against him was the distinct one of ‘disorderly conduct.’ 

“ What was the duty ot the accused acting as mayor? Clearly it was to consider whether 
the proof supposed the charge, aud if it failed in this to release the prisoner; or, if the proof 
sustained the allegation ot ofieuce, to award such punishment as the laws of the land affixed 
to its commission. 

“ What is the penalty prescribed by chapter 31 of the ordinances, section 293, for ‘dis¬ 
orderly conduct?’ It is therein provided that disorderly persons shall be subject to such 
penalty as the mayor may impose, not exceeding $50. Aud even from this the person ad¬ 
judged disorderly can relieve himself by giving boud in such sum as the mayor may pr» 
scribe for his good behavior for six months, or he may, instead of paying a fine or giving a 
bond tor good behavior, at the discretion of the mayor, but at the option of the accused,"be 


70 


poiniit ed to leave the city, This is the whole of it. What is the penalty prescribed by the 
doth section of the charter? The mayor is to cause the disorderly to give security for his 
good behavior for a reasonable time, and in case of a refusal to do this, to confine him to 
labor for a limited period, not exceeding six months. This last is what Horton, acting as 
mayor, could have done in the case of Archie Johnson, the black citizen, after he had found 
him guilty upon legal proofs. This last is what Horton, acting as mayor, could do with a 
white citizen in a similar case. This is all he could legally do with white or black men. 

“ What did Horton do with Archie Johnson 1 He found him guilty of the charge. In this, 
however wrong or mistaken he may have been, the law presumes he acted without corrupt 
motives. This he had the right to do. What more remained for him to perform ? To pro¬ 
nounce the judgment of the law, which judgment I have just cited. What judgment did 
Horton pronounce and have carried iuto swift and rigorous execution ? Archie Johnson was 
exiled as ruthlessly as ever a Russian autocrat sent serf or prince to Siberia. He escaped the 
knout, but suffered the banishment. He was not required to find security for his good be¬ 
havior in the future, nor allowed an opportunity to get bail, although the proof is over¬ 
whelming that there were many unobjectionable, well known, and reputable citizens who 
would have stood bound for him. Nor was he confined to labor in default of such security. 
He was entitled to this, and all of this, under the municipal law, and he was denied all this 
by the prisoner at the bar, acting as a magistrate. He was denied all this in violation of 
municipal law, of the laws of the State of Alabama and the Constitution of the United 
Sta es of America. 

“In connection with the subject of these municipal ordinances it is proper I should say 
that the common council of Mobile cannot pass any ordinance, the power to adopt which' is 
not plainly conferred by its charter of incorporation. The 30th section of the charter pro¬ 
vides the manner in which ‘ disorderly ’ or ‘ dangerous and suspicious persons ’ shall be dealt 
with. The charter is greater than the ordinance ; it is the parent of its authority and power, 
and having provided for the case, the only office of the ordinance is to effectuate the legisla¬ 
tive will as declared in the charter. This section of the charter does not authorize the mayor, 
acting as a police magistrate, to banish persons from the city or the State as a punishment 
for any offence against the municipality, and the ordinance that provides such punishment is 
ultra vires and void. Nor is this 293d section of the ordinances helped in the least by the 
last clause of the 3(Jth section of the chatter, which is in these words: ‘And to pass all such 
resolutions, by-iaws, and ordinances as they may deem requisite and necessary for the good 
government of the said city, not contrary to the laws of Alabama.’ 

“The provisions of the charter in respect of disorderly or dangerous and suspicious per¬ 
sons is a limitation on the right of the common council to legislate at all. On this subject 
the legislature has itself spoken, and properly too, because it concerns not merely the 
inhabitants of the chartered city, but the whole people of the State, and so careful was the 
legislature of the rights of all its constituencies that the power granted to make ordinances 
for the good government of the city is hedged in and about by the qualification that such 
ordinances must not ‘ conflict with the laws of Alabama.’ 

“Does the 293d section of the ordinance in question conflict with any of these laws ? It 
undeniably does. It conflicts with the 30th section of the charter, and this is a law of 
Alabama. It conflicts with the constitution of this State The 27th section of article 1 of 
the declaration of rights provides that ‘emigration from this State shall not be prohibited.’ 
This is a fundamental law of Alabama. It conflicts with the 8th article of the amendments 
to the Constitution of the United States of America, which declares that ‘cruel and unusual 
punishments shall not be inflicted ; nor shall any citizen be exiled ;’ and this is a controlling 
law of Alabama. 

“It is clear then that the last clause of the 30th section of the charter, which it is claimed 
by Mr. Moulton gives the mayor the right to banish citizens, cannot be so construed. The 
ordinances which the common council may pass for the good government of the city include 
only such as relate to subjects not expressly legislated upon in the organic law ; and I have 
shown that the cases of ‘ disorderly persons ’ and ‘ dangerous and suspicious persons ’ are 
fully provided for in the charter itself. In this case of Archie Johnson, from first to last— 
the arrest, the trial, the punishment, the execution of the sentence—all the proceedings were 
in gross violation of the rights of a citizen of the United States, and a contempt of that law 
of Congress expressly passed to protect those rights. If that law furnishes no means of 
vindication to Archie Johnson, then it is as sounding brass and a tinkling cymbal—it palters 
with the freedmen in a double sense ; it keeps the word of promise to their ear, but breaks 
it to their hope. It is a web of such attenuation that it breaks at every breeze. 

“Let us new consider the circumstances of the arrest of the Kith of August, 1867. It will 
be recollected that Archie had been imprisoned in Montgomery by virtue of an order from 
the chief of police of Mobile* which is in these words: 

“ ‘Office Chief of Police, 

“‘ Mobile , Alabama, August II, 1867. 

“ ‘Officer J. M. Coulon will proceed to Montgomery this day, at 2-J o’clock, by the Mobile 
and Great Northern railroad, taking with him Archie Johnson, colored. Upon arrival at 
that place, he will turn over the man to the city marshal, Maxwell, taking his receipt tor 


80 


same ; lie will then return to this city and report to this office. Marshal Maxwell will he 
informed that the charges against the man will he forwarded by the mayor of the city to the 
military authorities at Montgomery. Mr. Coulon will see that he be not interfered with, and 
in case of resistance will call upon any civil magistrate, officer, or citizens. 

‘“C. A. R. DIMON, 

“ ‘ Chief of Police .’ 


“ No sooner was Archie Johnson released from the Montgomery jail than he wended his 
way home to Mobile: and no sooner had he reached his home than he became the subject of 
another arrest and another imprisonment. Again and again, now as at first, he is arrested 
and thrown into jail, without any process of law ; without complaint under oath of a human 
being; without being found in the commission of any crime. On this occasion an entry is 
made in the guard-house docket under date of August Hi, 1867, that Charles Archie John¬ 
son is ‘ a dangerous character,’and that he stands ‘ committed by the order of the mayor.’ He 
is taken before Mr Horton, acting as mayor and magistrate, and by him, without evidence 
of any kind against him, ordered to give'a bond in $500 for his good behavior for six months. 
Such a proceeding, until now, was unheard of. Nemo debet esse judex in propria sua causa 
is a fundamental rule in the administration of justice. ‘No man can be judge in his own 
cause.’ It is a maxim as old as the law. 

“On the 16th of August, 1867, after Archie Johnson was thus tried and condemned by 
Horton, acting as mayor and magistrate, he was again thrown into the common prison, in 
default of giving $500 bail. This was on Saturday. He staid in jail until the following 
Monday, when Mr. St. Paul, a public-spirited and kind-hearted citizen, who belongs to a 
profession the members of which have never hesitated to beard the lion of tyranny, peti¬ 
tioned the Hon. Henry Chamberlain for a writ of habeas corpus , upon behalf of Charlie 
Johnson, the former slave. Judge Chamberlain allowed the writ For return to it, Mr. C. 
A. R Diinon alleged the cause of Archie Johnson’s imprisonment to be a letter which was 
directed by Horton to him as chief of police, and which letter is as follows : 


“‘Mobile, Alabama, August 17, 1867. 


“ ‘Dear Sir: I am informed that Charles Archie Johnson has returned to the city. If 
so, you will have him arrested and held subject to further orders. His presence here I con¬ 
sider dangerous to the peace of the city. 

“ ‘Respectfully, yours, 


“ ‘Colonel C. A. R. DiMON, Chief of Police.' 


‘“G HORTON, Mayor. 


“Judge Chamberlain held that there was no legal cause shown in the return for the deten¬ 
tion ot Archie Johnson, and this learned jurist ordered him to be released. 

“Thus ended the second in this series of imprisonments. 

“ For a while afterwards it seemed as if the negro would be allowed a respite from arrest. 
He went about his usual employment, but the must of the jail had scarcely worn off when, 
on the 7th of September, 1867, he was again, as he had been twice before, arrested without 
legal process, and without a precedent complaint on oath of his having committed an offence. 
It is true that the docket ot the guard-house on the occasion of this arrest has the entry of 
‘drunk,’ in addition to ‘disorderly conduct.’ The word ‘drunk’ has been interlined, and 
the words ‘ resisting officer in the discharge of his duty,’ have been added. Who made this 
interlineation and addition the prosecution endeavored to prove by the witness Wade, the 
keeper of the guaid docket but he was not familiar with the handwiiting of those entries. 
I he piisonei at the bar. who has the whole police force ot the city at his control and sub¬ 
ject to his ordei, has not called any witness to prove who it was that made these additional 
entries, and we are left to conjecture. 

I his third arrest took place on the 7th of September, as we have seen. On it Archie 
Johnson was confined in the guard-house from Saturday night until Monday morning, w r hen 
he was brought before the accused, acting as mayor and magistrate, and by him sentenced 
to pay a fine of Sod, oi be impiisoued for 30 days, and also to give a bond with sureties for 
his futuie good behavior. I he poor freedmau had not earned or saved enough from the 
giatuities ot the chaiitable to pay $50 dollars, and he was again incarcerated, and lay in 
jail two weeks and a half, when John R. Eggleston and Albert G. McGuire, esqs , of this 
city, bailed him out: Archie having to pay $19, the aliquot proportion of the fine of $50 
remaining due after being credited with the imprisonment he had suffered. 

“ A startling feature ot this last trial before Horton, acting as mayor, is brought to lio-ht 
by the uncontradicted testimony of Archie Johnson. He testifies that on the occasion of his 
being chaiged betoie Hoiton, acting as mayor, with drunkenness and resisting an officer, his 
biother was in couit, and that he offered him as a witness to prove his own innocence of the 
cliaiges piefeued against him, and that Horton, in his capacity of sitting magistrate refused 
to iecei\e the testimony, because the witness was a brother of Archie. It is worthy of con¬ 
sideration that although Johnson gave the name of officer Williams as the person who com¬ 
municated to Horton the fact ot the relationship of the proposed witness to Archie the 
accused has not called him to contiadict the testimony of Aichie on this most material point. 


81 


“Gentlemen of the jury, the foregoing i 8 but an imperfect summary of the facts brought 
to light by the United States. Opposed to themjs the affidavit of the accused that C. A."r. 
Dimon believes Archie Johnson a dangerous character, and that he had caused his arrest on 
this ground, and as a disturber of the peace of the city. It must not be forgotten that the 
times of these arrests are not stated in the affidavit, and you are not at liberty to presume 
that the arrests of Johnson by Diinon are the same arrests of which we have proof in this 
cause. Mr.'C. A. R. Diinon is not here, and it is but justice to him to say that lit does not 
say or testify to these matters The accused says them for him; and rather than postpone 
this trial the district attorney admitted that if Dimon were here he would swear to what Hor¬ 
ton swears he would. If the representations in Horton’s affidavit are incorrect, it is a mat¬ 
ter between him and Dimon. 

“ Upon these facts, gentlemen of the jury, this case is to be now submitted to you. 

“I charge you as a matter of law, if you tind that Horton, acting as mayor of Mobile, 
inflicted any other punishment upon Archie Johnson than the laws of the land prescribe for 
the same offence if committed by a white man, he is guilty of violating the provisions of the 
civil rights bill, and you must tind him so. And I further charge you as matter of law, 
that if you believe the evidence that Horton refused to allow bail to be taken for Johnson, 
and Mr. Eggleston and Mr. McGuire both testify to this, then the defendant denied to John¬ 
son the full and equal benefit of laws for the security of his person, and he is guilty of vio¬ 
lating the civil rights bill, and you must so tind. And in this connection I charge you that 
each and every one of the offences alleged against Archie Johnson was bailable by the laws 
of Alabama. And I further charge you as matter of law, if you believe that Horton, acting 
as mayor and magistrate, refused, in a case pending before him, to receive the testimony of 
the negro brother of Archie Johnson, which was offered by the accused in his exculpation, 
this refusal was a denial to Archie of the benefit of a proceeding for the security of his per¬ 
son, aud a violation of the civil rights bill ; and you must find him guilty. If the evidence 
before you leaves any reasonable doubt on your minds as to the guilt of the accused, he is 
entitled to the benefit of that doubt.” 

(The sentence was also read, and is as follows :) 

“ Mr. Horton, by a jury of your peers, your acquaintances, and townsmen, selected by your¬ 
self from the entire panel, you have been tried upon the indictment of the grand jury, and 
found guilty of the offences laid-to your charge, it now becomes my duty to pronounce the 
sentence of the law upon your conviction. 

“ I will not review the circumstances of your case or recapitulate the proofs upon which 
this conviction was had. They are fresh in your own memory, and are not like<y to pass 
into oblivion. Standing as they did, uncontradicted, it was impossible for the jury, while 
mindful of the obligation of their oath, to have found any other verdict than that they rendeied. 

“ The indictment contains two counts: one for the occurrence of the 8th of August, and one 
for the occurrence of the 11th of August, 18157. Each of these transactions embraces the 
offence of forcibly sending a citizen of this State into exile. The government might have 
added additional counts embracing other charges against you for violations of the civil rights 
statute, but the indictmeut is framed upon these two On this conviction you might be sent to 
the State prison for two years, and fined $2,000 in the discretion of this court. Its discretion 
upon this behalf must be exercised in view of its responsibility to God and to man. I am of 
the opinion that the ends of public justice and the rights of the citizen have been vindicated 
in your couvictiou, and that to imprison you would not add to its moral effect. The judg¬ 
ments of the law are never revengeful. 

“ The sentence of the court is that you pay a fine of $250, and stand in arrest until it is 
paid.” 

By Judge Busteed : 

Q. How old are you.—A. I was 80 years old in June. 

Q. Look at the letter shown you, dated August 23, 1865, and say if it is in your hand¬ 
writing. A. It is. 

Q. Look at the letter now shown you, dated Mobile, September 23, 1865, also addressed 
to me, aud say if it is in your handwriting.—A. Yes, sir; it is in my handwriting. 

Q. Where were these letters addressed to me, within your recollection.—A. I presume they 
were at New York city. 

Q. Look at the paper now shown you, dated October 27, 1865, and say whether you have 
ever seen it before.—A. I have no doubt this is a paper I am familiar with. 

Q. Look at the letter now shown you signed John Forsyth, and dated mayor’s office, 
Mobile, August 24, 1865, and say in whose handwriting it is.—A. 1 think it is in Mr. For¬ 
syth’s handwriting. t 

Q. Look at the one now shown you and say in whose handwriting it is.—A. I he body ot 
th.e letter and the additional note are in the handwriting of the parties by whom they are 
signed. 

Q. All these papers were sent by you to me in the city of New York.—A. Yes, sir. 

Q. Did you get a paper signed by the lawyers of Mobile directed to me requesting your 
appointment as clerk of the district court of the United States lor the southeru district cf^ 
Alabama.—A. I received such a paper signed by almost all the members of the bar in Mobile. 

G B 


82 


Q. Did Robert H. Smith sign that recommendation.—A. I have no distinct recollection ; 
I have very little doubt that he signed it. 

Q. Were attorneys in the habit of visiting the judge’s chambers while they had causes in 
court.—A. Many of the attorneys who had business in court were in the habit of visiting the 
judge’s chambers. I cannot say that all did. 

Q. Have you seen Robert H. Smith in there.—A. I do not remember haviyg seen him 
there. I was not there myself very often, but I saw attorneys coming into that part of the 
building. 

Q. Do yon know of persons who are suitors in the court, making presents of liquors to me.— 
A. No, sir: I do not. 

Q. I did keep wines and liquors in my private chambers —A. Yes. 

Q. And occasionally gave you a glass of wine, did I not—A. I have taken a glass of 
wine with you there. Your manner was always very kind to me in your room. 

Q. Up to this hour or time has Judge Busteed ever said or done any unkind thing to you 
personally.—A. 1 believe I am bound to answer that question. Very often it occurred in 
court that Judge Busteed supposing and sometimes knowing that I had committed some small 
error was in the habit of calling att ntion to it in court in a way to make it public, very public. 
For example: on the docket as we keep it in Alabama, and as I have observed it elsewhere, 
there is one column for making entiies of anything special that has been previously dune iu 
a particular case, as “Continued by the plaintiff;” and in one case it had been entered at a 
previous term “Death of the defendant suggested,” and in making out the docket for the 
new term I put in that column “ Death of the defendant suggested.” When the judge came 
to observe that, he called out to me, “ What in the world have you made this entry for; 
this was done at the la-4 term.” I replied that I was aware of that, but that I had followed 
the practice which had before been followed Then, in the same unkind way, as if to make 
it appear that I was derelict iu duty he said to me, “ Never make an entry of anything which 
was done in the preceding term.” There were various matters of that kind that were 
unpleasant, so far as my feelings were concerned, but they made no deep impression upon 
me, and, therefore, I was very reluctant to answer the question which you put; and in fur¬ 
ther answer perhaps I ought to say that T have been in the office as clerk of the United 
States court befoie our late troubles. When the confederate government Avas established I 
was continued as clerk of the court, and held on to the room in which the records of the 
United States Avere, and preseived them Avith some difficulty and Avith great care. After 
the surrender of the city of Mobile I still preserved these records, which were committed to 
my care by General Smith, and 1 might have held on to the office without having to take 
the oath, which excludes most of us When Judge Busteed came to Mobile he appointed 
Mr. Worrall his clerk. I did not consider that unkind, knowing that Judge Busteed and 
Mr. Worrall were intimate friends; but in view of the recommendations I had received, 
Judge Busteed promised that I should be retained in the office. During the last year he 
appointed as Mr. Worrall’s successor a Mr. Trimble, I think a young man from Tennessee. 
He did this without giving me any notice of the appointment., and Mr. Trimble, having 
remained in the office about a fortnight and learned from me the routine of the office, with- 
out any notice whatever dismissed me from his employ. I ascribed that to Judge Busteed, 
and did not consider it kind in him to permit it to be done after the promise be had made. 
I am a poor man with a family to support, and Avas left in the mouth of December without 
employment and without the means to feed or clothe my family. I sought what einplov- 
ment i could, and at last entered upon the practice of the law ; and now, at 80 years of age, 
I have returned to the labors of a young man, and am endeavoring to devote my time labo¬ 
riously to the practice of the law. I did consider that an unkind act on the part of Judge 
Busteed, and yet I do not think it has anything to do with this case. I am here by com¬ 
pulsion, and I know that I have said nothing from any feeling of unkinduess towards 
Judge Busteed. 

Q Aside, from this act of Mr. Trumble in dismissing you from the assistant clerkship, had 
Judge Busteed ever done any act of unkindness to you.—A. Never. 

Q. Do you recollect when these books Avere taken by way of the court from Mr. Tomeny 
and others, that there was a military court kept over the room in which they were deposited.— 
A. 1 recollect very Avell seeing men iu uniform with arms at the outer door of the room in 
which those books Avere kept; I did not know by whose orders. 

Q. In the case of this man wlm called upon you with Jacob Wilson, Avas his case one of 
the libels tiled by Martin, the district attorney, when I Avas away in Washington—one of the 
libels of steamboats for not having names, &e.—A. It was one of those cases. I do not know 
where jou were at the time it Avas tiled. I recollect when many of these libels were tiled 
that vou were not in Mobile, though I think some of them were tiled after you came to 
Mobile. 

q. A motion was made in these cases afterwards to compel Martin to pay over the money 
he had got from these parties —A. Yes, sir. 

Q. Mr. Martin had $100 in each case and agreed to settle the libels out of court, did 
he nn<- —A. He agreed to settle them. 

Q. He did that without the consent of the judge, and without consulting with him at all.— 


83 


A. There had been no consultation with the judge. These libels were settled by agreement 
With the claimant in each case. ° 

Q. And $130 paid to you in each case of which you paid $100 to Martin, although the 
legal fees which he could claim did not exceed $10 in each case.—A. I do not know what 
his legal tees were; he charged $100, which I received under his written authority and 
handed it over to him. ’ 

Q. Do you not know that, Robert H. Smith, now present, appeared as attorney for Martin, 
contesting the right of the court to require Martin to pay the money back again to the parties 
from whom he had swindled it.—A. I know the motion was made in behalf of the claimants, 
or of some of these parties, to require Mr. Martin to refund the $100 which he had received,’ 
and that Robert H. Smith appeared for Mr. Martin in opposition to that motion. 

Q. Do you know of any overruling application made to Judge Busteed to retax any bill 
of costs in the southern district.—A. I do not remember any such instance. 

Q. Do you know of any appeal taken from your decisions of the taxation of costs from 
Worrall’s taxation of costs in the southern district to myself as judge.—A. I know of no 
such appeal. 

Q. Iu these salvage cases of which you speak, occurring iu 1866, Robert H. Smith appeared 
as counsel for the salvors.—A. Yes, sir; in many cases. 

Q. And Peter Hamilton appeared for the insurance companies and their claimants.—A. 
Yes, sir. 

Q. Were you present in the court when the salvage cases in which Smith and Hamilton 
appeared were tried by the judge and witnesses examined.—A. I cannot now call them to 
mind. 

Q. This Agustavus Horton, of which Mr. Smith has spoken to-day, was arrested and 
brought before a United States commissioner on the charge made by Johnson under the 
civil rights bill when I was iu Now York, was he not.—A. I do not know anything of the 
proceeding before a commissioner, or until the trial came on iu the court. 

Q. \ou do not know than that what he was arrested before me on an original complaint.— 
A. I do not know anything about that fact. 

Q. Who were the jurors in Horton’s case; were they reputable citizens in Mobile.—A. I 
do not remember them by name. 

Q. Would you recollect the names if I were to give them —A. I am not sure whether I would 
or not; they were reputable men and good citizens; I do not know of any exception among 
them. 

Q. Who paid you for reporting Horton’s case.—A. I was not paid ; I did it as a friendly 
act for Mr. Forsyth. 

Q. Have you made copies of the records of the court at Mobile a good deal since you left 
the clerk's office.—A. I have not; I do not think I have made any record since I left the 
clerk’s office. 

Q. Have jou not, at the request of Robert H. Smith, made copies of the record at the 
clerk’s office since you left.—A. I think not. 

Q. Or before you left, to be used by him in these proceedings.—A. No, sir; I have not. 

Q. You were staying in a room with Mr. Semple in Washington, were you not.—A. I 
am occupying the same sitting-room with Mr. Semple ; I have a chamber of my own. 

Q. You were clerk of the United States district court at Mobile before the rebellion.—A. 
Yes, sir. 

Q. And you were clerk of the district court of Alabama for the Confederate States of 
America, so called.—A. I was. 

Q. You took the oath of office of clerk of the United States district court, did you not.— 
A. Yes, sir; I took an oath to support the Constitution of the United States many times. 

By Mr. Smith : 

Q. Did Judge Busteed ever say anything to you as to whether I should be admitted to 
enter the clerk’s office or not. or to look at the public records of the court; if so. when and 
where was the order made.—A. When Judge, Busteed suspended Colonel Smith from prac¬ 
ticing in his court for a time, he directed me not to permit Colonel Smith to come into the 
clerk’s office. Colonel Smith came in the same day and I told him of the order I had 
received, and he withdrew from the office and wrote me a note requesting me to state pre¬ 
cisely what order I had received. I carried his note to Judge Busteed before answering it; 
showed it to him ; he told me I was mistaken ; that he “ had not directed me to exclude Mr. 
Smith from the office.” 

Q. Were you mistaken or not.—A. I know I was not mistaken ; he gave me the order. 

By Judge Busteed : 

Q. Was not the order “not to receive any papers on the file marked with the name of 
Robert H. Smith as attorney.”—A. No, sir; that was not the order; I do not know there 
was any such order given me ; I should not have received any paper from him as an 
attorney after his suspension, knowing that he had no right to transact any business in 
court. 


84 


By Mr. Smith : 

Q. You were not mistaken in the order.—A. No, sir. 

Q. You have been asked by Judge Busteed if I appeared for Mr. Martin in opposition to 
a motion ; did I defend that motion simply by tiling an exception to the motion ; address an 
argument as a question of law whether or not he had jurisdiction in that form on the trial.— 
A. They were exceptions to the legal character of the motion without going into the merits 
of the conduct of Martin in making settlements. The question was aigued by Colonel 
Smith only upon these exceptions. 

Q. Did Judge Busteed make any attempt to get me to try it as a matter of fact, and what 
disposition did he make of my exception.—A. I understood him to announce that the excep¬ 
tions were overruled. I do not remember his calling on Colonel Smith to try the case ; I 
only remember Colonel Smith’s saying to the court that he came there only to argue the 
question of law, and that his connection with the motion then ceased. I do nut recollect 
anything that came from the judge. 

Q. 1 having, I consider, nothing further connected with that matter while I was there.— 
A. No, sir. 

Q. You say that Judge Busteed overruled the exception ; do you know whether at a sub¬ 
sequent term he came in and reversed his decision and dismissed the case for want of juris- 
. diction, pronouncing against Martin a severe philippic which led to an encounter between 
them.—A. I was not in court and cannot speak of my personal knowledge of the last deci¬ 
sion made by Judge Busteed. I heard of it and called at the clerk’s office to see what it con¬ 
tained , the clerk did not seem to know where the paper was, and having recently left the 
office I knew where to find the file, and with his permission got the file and found several 
papers connected with the case, but no order from the judge was there, and the clerk could 
never find the original order overruling the exceptions, which 1 had understood was made, 
and there was nothing in relation to it on the minutes of the court. 

Q. Were these jurors in the Horton case men of such intelligence and character that they 
would not be likely to allow the charge of the court as a matter of law to prevent them 
from finding a correct verdict.—A. I think they are men of ordinary firmness, but the lan¬ 
guage of Judge Busteed towards juries was very peremptory; it was in the nature of an 
order. I recollect one case in which he directed the jury to fiud for the defendant, m which 
there were matters of evidence brought out on the tiial: the foreman of the jury brought in 
the verdict in court: “ We find for the defendant, by order of the judge.” Mr Hamilton, 
who was for the plaintiff, objected to this verdict. The judge then ordered the foreman to 
erase that clause, and find simply the ordinary verdict for the defendant. So that in answer 
to your question I am not able to say what the jurors would have done under the peremptory 
charge of the judge. Moffit was the name of the foreman who wrote the verdict, “ We find 
for the defendant, by order of the judge.” 

Q. Was Moffit a man of intelligence.—A. Yes, a man of great intelligence, and of high 
reputation for purity of character. 

By Judge Busteed: 

Q. Mr. Worrall was appointed district attorney pro tempore by Judge Wayne, now deceased, 
was he not.—A. Yes, sir. 

Q. You were in Mobile, March 5, I8fifi.—A. Yes, sir. 

Q. Did you write Judge Wayne a letter on the subject of Mr. Worrall’s appointment.— 
A. I wrote a letter recommending his appointment; Judge Wayne had been an intimate 
friend of mine from boyhood. 

Q. The original of that letter went to Judge Wayne; did you keep a copy of it.—A. No, 
sir. 

Q. I will now read what purports to be a copy of the letter, and ask you whether it is 
correct. The letter is as follows : 

“Mobile, March 5, 1866. 

“My Dear Sir: The business of the circuit and district courts of the United States for 
the southern district of Alabama is now being obstructed for the want of a district attorney. 
Permit me earnestly to recommend for this appointment, pro tern., Lawrence Worrall, esq. 
He has been for a few months the clerk of these courts, and I have been acting as his dep¬ 
uty. In this relation I have had ample opportunity of observing him, and can speak with 
confidence. He has high qualifications for the duties of United States district attorney. 
He has practiced law in the city of New York for several years successfully. He is a gen¬ 
tleman of singular purity of character and most acceptable to our community in his deport¬ 
ment. His appointment would be agreeable to our bar, and I take the liberty of adding 
that it would be regarded with thankfulness by me. 

“ 1 am greatly gratified at the change in the judicial arrangements which will call you to 
preside in Mobile, and hope it will not be long before I shall have the pleasure of seeing you 
Here. 

“ With high regard, 

“JOHN A. CUTHBERT, 

“ Hon. James M. Wayne, 

“ Associate Justice of the Supreme Court of the United States." 


85 


A. I do not question that that is a correct copy of the original letter written by me to 
Judge Wayne. 

Q. While you were deputy clerk in the office at Mobile, before the incumbency of the 
present clerk, did you not employ a good deal of your time in doing other things than attend¬ 
ing to the duties of the office.—A. No, sir. 

Q. Were you not writing a Life of Christ during this period, or any book of that designa¬ 
tion.—A. No, sir; I did a little writing—some two or three or four pages—on the character 
of the Saviour, and l did compile, during a part of that period, in the summer months, when 
there was nothing doing except furnishing copies to attorneys, a digest of commercial law, 
with the hope of getting it published and of making some support out of it. 

Q. Did you not request Mr. Worrall or some one to take it to New York and see if he 
could not g’et it published.—A. I requested him when he was goiug in New York to take it 
and see if he could not get it published on terms on which I could comply. 

Q. When, as to time, was that request made.—A. I think it must have been in the spring 
of 1867, and that I compiled it in the summer of 186(3. 

Washington, D. C., January 8, 1869. 

Peter Hamilton sworn and examined. 

By Mr. Robert H. Smith: 

Question. What is your profession.—Answer. I am a member of the bar of the supreme 
court of Alabama, residing in the city of Mobile. 

Q. Did you practice in the courts of the United States at Mobile during the years 1865 to 
1868 inclusive.—A. Yes, sir. 

Q. State the history of the case of Charles Newberry vs. 66 bales of cotton, or rather the 
admiralty case in which there was a seizure of 454 bales of cotton, known as “the Natchez 
case.”—A. The lighter steamer of Natchez on her way from Mobile met with an accident 
and sunk ; about 1,600 bales of cotton weie saved ; sundry libels were tiled by a number of 
persons to obtain salvage compensation for saving this cotton ; I was retained in behalf of 
the claimants of the cotton ; the cotton was all on its way either to Liverpool or Havre; I 
appeared for the claimants of the cotton, who were the shipmasters or consignees of these 
vessels which had signed bills of lading for the cotton. Upon tiling the libels the claim¬ 
ants—as had been usual between proctors in that court—had an agreement with each other, 
Mr. Smith representing some of the salvors, with Manning & Walker representing others of 
the salvors, and with several others, that upon admiralty stipulation, at an agreed value per 
bale, being tiled, without having the cotton appraised, it should be turned over to the claim¬ 
ants. I had a number of interviews with Judge Busteed, both privately, at chambers, and 
in court, continuing for some time; but failed to make any arrangement by which the cotton 
could be turned over to the claimants under stipulation; finally an order was made in the 
case ; the difficulty that was represented to exist at the time was, that a part of this cotton 
had been originally claimed by the United States, and on that account the claimants could 
not be allowed to take the cotton. In the claim which I tiled I distinguished between the 
cotton which had been recovered and bore the marks under which the cotton claimed for the 
United States had been shipped, and such as bore other shipping marks by private owners. 
The order finally made directed the marshal to seize a certain amount of cotton, and turn the 
rest over to the claimants upon a stipulation. It would require a long time to go into all 
the details of the transaction. 

Q. Did you take into court the consent of myself with the other attorneys, that a certain 
amount was satisfactory to those who had libelled the cotton.—A. There was an agreement 
of that sort made, and I think exhibited by myself to Judge Busteed. 

Q. Did Judge Busteed allow the stipulation to be entered into.—A. No, sir; he refused, 
out and out. 

Q. Did he state anything as to what the practice had been in that court.— A. At first I 
could form no idea of what the difficulty was, and I think I had more than one interview 
upon the subject before I arrived at it. I then learned that the difficulty was on account of 
a portion of this cotton being claimed in behalf of the United States. 

Q. The cotton you proposed to bond was cotton that you proposed to identify by marks 
as your cotton. 

(This question was objected to by Judge Busteed as a leading question and withdrawn.) 

Q. Please to state what was the act of Judge Busteed in assenting to or refusing the stipu¬ 
lation.—A. At first, as I have said, I could obtain nothing from the judge except a refusal. 
I remonstrated against the refusal, statiug what our practice had been. Out of the number 
of the bales saved—about 1,660 in all—it appeared that at that time from 40 to 60 bore no 
mark, or that the marks had become obliterated by submersion in the water; the marks on 
all the others could be identified. When the claims were filed by myself, the marks upon 
the bales of cotton claimed were inserted in the claims. For instance, the ship Phenix had 
given bills of lading for so many bales of cotton to be transported to Liverpool, and the bales 
of cotton identified by the marks specified these bills of lading of the ship Phenix I claimed; 
and so in respect to the other lots of cotton. After other interviews with Judge Busteed I 
ascertained that 227 bales of the cotton were alleged to be claimed as the property ot the 


86 


United States. I obtained the marks under which that cotton had been shipped, and, as I 
recollect now, out of the 227 bales 102 bales were found having- these marks, and, as I said, 
there were some 40 or 60 out of the whole lot, the marks on which could not be identified at 
all. Eventually Judge Busteed made an order directing the marshal to take into his possession 
454 bales of cotton, to indemnify the United States against loss on these 227 bales, which, 
as it was alleged, had been the property of the United States, and had been surreptitiously 
taken possession of by private parties, and subjected to this risk without proper authority. 
The order printed on page 9 of the charges of Kobert H. Smith, I think, is the order given. 
But it is only fair to state a little more in detail what was done. The original order signed 
by Judge Busteed is in my haudwriting, and this occurred from the fact that, having had 
several interviews with the judge without coming to any conclusion, I waited upon him again 
and listened to his views. My clients represented to me that the cotton was being injured very 
much by this delay, and I remarked, after bearing what he had to say on this application, 
that I could embody in writing the views expressed by the judge, dissenting, however, all 
the time from their correctness, and I did sit down and write, in my own handwriting, an 
order, which was read over and signed by the judge. The order I assented to only as an 
alternative. 

Q. I ask you as a lawyer whether it is in accordance with the admiralty rule that the 
property of the United States saved from shipwreck is subject to salvage as well as that of 
individuals.—A. Certainly; it is liable to salvage; that has been decided by Judge Story 
over and over again, and affirmed by at least one decision of the Supreme Court of the United 
States. 

Q. Is it, or is it not, according to the course of practice in the courts for every man who 
claims property that has been saved to identify his property.—A. Certainly. 

Q. Did you ever before hear of seizing just so many bales of cotton because the party, 
whether the United States or anybody else, had so many bales on board.—A. No, sir ; I 
never did. 

Q. Did you ever hear before of doubling the amount of cotton and taking it from other 
owners, and taking it without regard to the marks it bore.—A. Of course that answer is 
involved in the former answer; I never did. 

Q. And yet was this all done in the case referred to.—A. Yes, sir. 

Q, What was done with the 454 bales of cotton.—A. I cannot state of my own knowl¬ 
edge because I did not see it knocked down ; it was sold. 

Q. Was it sold in different lots, or was it all put up in one lot.—A. It was all sold in one 
lot. 

Q. Was that an unusual thing.—A. I think it a very extraordinary procedure. 

Q. How much money did it bring.—A. I think about $45,000 or $46,000. 

Q. What would it probably have brought, if it had been sold in separate lots.—A. I am 
not in the cotton market, and I do not know that I can answer that. My opinion was that 
it would have brought considerably more than that amount. 

Q. What steps did you take, then, in reference to the sale.—A. I moved the court to set 
aside the sale. 

Q. Who were the witnesses you examined.—A. J. S Secor, Charles T. Ketchum, A. M. 
Griffin, and some four or five others whose names I do not now recollect. 

Q. Were they respectable men.—A. All of them, so far as I know. 

Q. Are they men well known in that community.—A. I think they all are. 

Q. What was the treatment these witnesses received from Judge Busteed in their exam¬ 
ination. 

(The question objected to by Judge Busteed, and allowed by the committee.) 

A. In my judgement the treatment these witnesses received was objectionable to the last 
degree. The manner of the judge to the witnesses was insulting and disbelieving, as if he 
suspected everything they said to be untrue, and his treatment of them was, I think, in 
accordance with that suspicion. I cannot describe it more accurately than to say that, in my 
judgment, it was exceedingly unbecoming. In some instances he almost put replies into the 
mouths of the witnesses which they had not uttered. I began the examination of the wit¬ 
nesses myself, and put the questions to them. My examination was constantly interrupted 
by the court. I was not permitted to put very many of the questions which I desired to put. 
I was continually required to change the terms of my questions, and they were allowed to be 
put from me only through the judge himself. Objections were continually suggested by the 
court, and acted upon, sometimes without permitting me to make any remarks at all upon 
them. 

Q. What did the testimony tend to prove.—A. The tendency of the testimony was to prove 
the facts upon which I had made the motion to set aside the sale. In the first place, that 
the 454 bales of cotton were sold in one lump; and, in the next place, that the cotton was 
sold in such a manner that there could be no opportunity at all to make any examination of 
it as to its condition. In the next place, that the sale was conducted in so rapid a manner 
that those who had gone there with a determination to bid considerably above the amount at 
which the cotton was knocked down, were not permitted to make a bid. And another fact, 
that, as I conceived, a very incompetent person was appointed to conduct the sale. 

Q, Who was that person.—A. Jacob Wilson. 


87 


Q. W ho bought the cotton.—A. Douglas Hertel was the cotton broker who purchased it. 
Who the real purchaser was I did not know, and I never ascertained. 

Q. Did you proceed with the investigation of that matter, or did you discontinue it before 
you completed the investigation ; and. if so, why did you stop.—A. I carried on the investi¬ 
gation, by getting witnesses and putting them upon the stand, until a personal altercation 
arose between the judge and myself, when I announced to the court that I could not consent 
to proceed with the examination in that way, or to subject the witnesses to that kind of treat¬ 
ment, any longer. The judge told me to proceed with the examination of my witnesses. I 
declined to proceed any further. The judge then himself ordered the witnesses to be called, 
and subjected them to examination. 

Q. How long have you been practicing law.—A. Over 20 years. 

Q. Have you ever seen such a proceeding in court before.—A. I never have. 

Q. It the owners of that cotton had beeu allowed to make proof of their property, and to 
give the ordinary stipulation allowed an.1 authorized by admiralty, what do you suppose 
would have been the probable costs that would have been incurred attending these admiralty 
suits.—A. I cannot answer that question accurately. The costs would have been very much 
less than they were. In fact, there would have beeu occasion for no costs, except the costs 
of witnesses and of subpoenaing them, the costs of the record, and the other ordinary costs of 
a suit. 

Q. Was this lighter steamer sunk in sight of the fleet.—A. Yes, sir. 

Q. And boats from the fleet were immediately put out to save the cotton —A. Yes. 

Q. Was there much similarity in the cases of the salvors of this cotton.—A. Yes; the great 
mass of them were exactly the same. 

Q. According to admiralty practice, would it have been proper to have consolidated these 
cases.—A. In my judgment it would. 

Q. Did I, in tiling the libels, practically consolidate a number of the claims.—A. I think 
you did, and that you came within the law. 

Q. Was there a motion made to consolidate.—A. Yes, sir. 

Q. Was it admitted or refused.—A. The consolidation was made, as I understood it, atone 
time. I moved to consolidate, and I understood that the order was granted. Subsequently, 
inasmuch as there was no entry of that order made upon the minute book, to the end that it 
might appear of record, I inserted in the order directing the seizure of the 454 bales the 
clause, “ which had been consolidated.” Afterwards the proceedings were conducted by the 
court, however, as if no consolidation had taken place. 

By Mr Eldridge: 

Q. By whose order or direction.—A. I do not know. The judge afterwards denied that a 
consolidation of the cases had beeu granted, and refused, in several instauces, to consider 
them as consolidated. 

Q. Was that after the order was made.—A. Yes, sir. 

Q. Except to send up one witness from each vessel to state the little incidents affecting 
his boat’s crew, as different from the others, in what did ihe testimony in behalf of these 
salvors vary from one plain, simple case.—A. The circumstances connected with the great 
bulk of the salvage claims were the same. There were cases, however, differing in degree; 
for instance, there was a steamboat, which was bound for New Orleans, which stopped and 
made great exertions to save the cotton. 

Q. The weather was fair and the sea smooth.—A. Yes, sir; there was little risk of prop¬ 
erty in saving the cotton. 

Q. How much costs were your clients put to in these cases.—A. Upwards of $10,000. 

Q Who were your clients.—A. The claimants I appeared for were the agents of some six 
ships. 

Q. The Great Western Insurance Company of New York was the principal of your clients.— 
A. They were heavy underwriters. 

Q. The aggregate amount of costs was ten thousand four hundred dollars and odd ; is the 
statement, I now show you a detailed statement of the costs.—A. Yes, sir. 

Q. Who prepared that statement.—A. I prepared it. 

Q. Did you prepare it with great care, or otherwise.—A. I prepared it with great care, 
and, I believe, with entire accuracy. 

[The statement referred to is presented as exhibit A, attached to R. H. Smith’s charges.] 
By Mr. Eldridge : 

Q. I understand you to say that when you first replied to the judge in reference to this 
cotton you could get no reason for his refusal to do what was desired ; did you finally get 
from him the reasons.—A. The reason assigned by the ju lge was that he had reason to 
believe that 227 bales of this cotton had borne the proprietary ma ks of the Unite 1 States, 
and had been surreptitiously taken from the possession of its officers and subjected to this 
risk without authority of the government, and therefore that the government must be pro¬ 
tected against loss. 

By Mr. Woodbridge: 

Q. You say that in your first interview with the judge you could not understand his reasons ; 
how many interviews did you have with him, and how much time elapsed alter the first 




88 


interview before lie stated to you that the government claimed 227 bales of this cotton. A. I 
cannot fix the time accurately. 1 recollect that in one interview the judge said lie would 
like very much to see the bills of lading of these several ships for this cotton ; and copies of 
the bills of lading 1 were furnished to him. That was before I obtained this order. I called 
upon the judge the next day, and probably two or three times before I got the order. Sev¬ 
eral days elapsed from the first application until the order was made; I cannot state the 
number of days. 

Q. Was it alleged that the owners of the other cotton had done anything improper.—A. 
That was precisely the point we made—why should these gentlemen be implicated in an 
improper transaction, if there was such a transaction, with which they had nothing what¬ 
ever to do ? 

Q Then it was not claimed that the owners of the other cotton had done anything 
improper, in .relation to the cotton.—A. There was no proof that they had. I he amount of 
the allegation was that, upon the statement of facts made by the judge, the government of 
the United States should be protected. 

Q. Who appeared for the government of the United States.—A. Mr. Andrews. 

Q. Did he claim that the owners of the other cotton had anything to do with the removal 
of the 227 bales.—A. I do not know that he did ; there was no claim filed, and no such claim 
at that time was set up, as I now recollect. I do not think it was put upon that ground or 
upon any other, except that the government of the United States had suffered so much, and 
tlierefoie the government should he protected to the full extent. There was no pretence, so 
far as I can recollect, that these gentlemen were cognizant of the shipment of that cotton, or 

that they had done anything in regard to it. 

» 

By Mr. Eldridge: 

Q. When the judge finally gave you these reasons to which you last referred, had a claim 
on the part of the United States then been filed.—A. No. I remember perfectly well that it 
was before any writing had been presented on behalf of the United States, because I remarked 
to the judge, ‘‘The United States are making no claim here.” 

Q. Why did you go to the judge to negotiate about the matter.—A. Because I did not 
know where else to go. The clerk had refused to give an order upon the marshal to turn 
over this cotton and receive the stipulation. 

By Mr. Churchill: 

Q. Was it usual for the clerk to receive such a stipulation without the action of the court.— 
A. Certainly, when the written assent signed by the counsel on both sides was presented. 
Of course it was understood that the attorneys had the right to manage their own cases. Tho 
stipulation would have been received and the order given in any ordinary case. 

Q Was any attorney, at that time, employed by the United States.—A. 1 know of none. 

Q. Did the judge assume to act as counsel for the United States in a matter of this kind.— 
A I have stated the intimation that I received from the judge. I cannot say that he was 
actii g as counsel for the United States. I received from him the statement that the United 
States claimed so much cotton ; and this was before any claim had been put in by the United 
States. 

Q. Did you have these interviews with the judge when Mr. Andrews was present.—A. I 
cannot speak certainly about that. In the earlier interviews Andrews certainly was not 
present; I was alone with the judge. I do not mean to say that I was secretly with him, 
but that I do not recollect of anybody else being present. 

By Mr. Smith: 

Q. Do you know whether this 227 bales of cotton, of which the judge spoke as belonging 
to the United States, was cotton which the judge himself had decreed to Price Williams.— 
A. A decree, by default, had been entered in favor of Price Williams by Judge Busteed. 

Q. That was an action in tort against the ship, I believe; can you state the name of the 
attorney who brought it,—A. Judge Campbell, formerly associate justice of the Supreme 
Court of the United States. 

Q. Is Judge Campbell of high professional character.—A. Yes, sir ; of the highest. 

Q. M ould you suppose it possible that Judge Campbell would undertake to play a trick 
upon Judge Busteed and get him, fraudulently, to decree 227 bales of cotton against the 
United States.—A. O, no ; Judge Campbell was a man above anything of that sort 

Q. Was it not Tomeny, the treasury agent, who shipped this cotton to New York.— 
A. Yes. 

Q. Judge Campbell had filed a libel and got it; the cotton was seized ; and Judge Bus¬ 
teed awarded this cotton to Price Williams, as the shipper.—A. Yes; by default. The case 
was called in court, and the decree given by default. 

Q. And yet the pretence of the judge was that this cotton was owned by the United 
States, that it had been improperly taken without the knowledge of the United States officers, 
and that the United States must have the full value of it in sound condition, and therefore 
the 4f 4 bales were seized.—A. Yes, sir. 

Q. Is the paper 1 now show you the decision rendered by Judge Busteed in this case.— 
A. That 1 cannot answer without some examination; I remember the case very well, and 


* ♦ 


89 


% 


that the decision was published. I recollect the current of the language used by the iudtre 
in Ins decision. ° J J 6 

The paper referred to having been compared with a paper in possession of Judge Busteed 
its correctness was admitted by him. The decision is as follows: 

“THE OPINION OF JUDGE BUSTEED. 

“ United States District Court , Southern District of Alabama. 

“In the matter of application to set aside a sale of 454 bales of damaged cotton, made by 
the marshal of the United States on the 9th day of April, 1866, Peter Hamilton for the 
motion; Alexander McKmstry and United States District Attorney Worrall opposed. 

“ OPINION. 

“ This is a motion to set aside a sale of 454 bales of damaged cotton, made, bv the marshal 
of the United States, on the 9th day of April, instant, under an order of this court. 

“The paper upon which the motion was founded assigns as causes for the relief sought: 
1st The 4 inadequacy of the price obtained.’ 2d. That ‘ the cotton was sold improperly, 
without proper notice and in one lump.’ lid. That ‘ the cotton was sold so as to prevent 
competition among the buyers.’ 4th. For ‘ other good causes to be exhibited.’ 

“ It will be seen at once that these charges gravely impeach the official and personal integ¬ 
rity of the marshal ot the United States for this district, and although often they were pub¬ 
licly suggested, there was an evident indisposition to press them to trial, 1 would not allow 
counsel to withdraw them, or even to delay an examination into their merits. I felt that if 
they were untrue, as it now appears, they should not have beeu made, and if true, the officer 
so seriously offending should be visited with speedy and adequate punishment. The rights 
of all concerned left me no alternative. The formal accusation of the executive officer of this 
court is too serious a matter to be lightly passed over, and I ordered the witnesses by whom 
the charges were expected to be sustained brought into court to be orally examined. The 
examination was had before me on the 19th of April, instant, and I took and reduced the 
testimony to writing. 

“Very eaily in the course of the proceedings the court required the counsel for the moving 
parties to state verbally, or to put in writing, what other causes, if any, than those specifi¬ 
cally mentioned in his notice of motion were relied on to sustain these charges. This the 
counsel refused to do, and the court then gave him notice that he must confine his testimony 
to proof of the misconduct particularly alleged and specified iu his moving papers. 

“The fiist person called to maintain the cause of the claimants was Joshua S. Sec.or. This 
witness testified under the bias of strong personal interest. If the sale lmd not been con¬ 
ducted by the marshal, Secor would have had its management, and derived from it consid¬ 
erable gain and profit. He was the active agent iu making the complaints against the 
United States officials, and in procuring the witnesses. He drafted the original papers, and 
submitted them for approval to the attorney. His clerks copied them, and he himself, in 
person, went after the affiants, taking with him a justice of the peace to aimiuister the oath 
to them. His examination in court needed none of these discrediting aids to weaken the 
force of his testimony. It is a series of contradiction, suppressions, and vague opinions. 
With him, thoughts and wishes take die place of knowledge and facts. He estimates the 
time occupied in selling the cotton at ‘ fiom tlnee to four minutes,’ while two of the witnesses, 
produced by himself, say it occupied ‘about 15 minutes, and two others of them are unable 
to say how long it did take. In one breath he declares that ‘a much better price’ was 
obtained for cotton of the same description as that sold by the marshal, when subsequently 
sold under his own direction, and in the next breath says he does not know what prices 
were obtained for the cotton so sold by him. He testifies that he is the agent of the con¬ 
signees of the property, and in that capacity attended the marshal’s sale, and that there was 
no time allowed for purchasers to advance upon the final bid ; and yet, himself upon the spot, 
makes no public protest of unfairness or haste, or wrong against either the marshal or the 
auctioneer, but quietly submits to the sacrifice of the interests he was paid to protect. He 
hands to his counsel, and the counsel for his principals, an affidavit purporting to be sub¬ 
scribed and sworn to by seven persons on the 18th day of April, 18(56. and upon cross- 
examining him it comes out that two or three of the seven subscr.bed it a week before, 
two of them three days before, and one of them, who, though subpoenaed, was not called to 
the stand by counsel, upon an examination by the court, testified that, in fact, no oath had 
ever been administered to him. This, too, notwithstanding the affidavit recites, and the 
justice of the peace officially certifies he was ‘ duly sworn ’ to it on the 18th of April, 1866. 

“ Such conduct is a flagrant breach of propriety. A witness is sworn as much to tell all 
of the truth as not to tell anything beside the truth, and in the eye of conscience and of the 
law, the suggestio jalsi is not more criminal than the suppressio v<ri. 

“The counsel for the claimants next called Olney Lovett to sustain their case. Mr. 
Lovett attended the sale by the marshal on the 9th of April, and he contradicts the witness 
Secor iu almost every material particular. He testifies that he had seen the notice of the 


90 


intended sale in two of the public newspapers of this city ; that he himself attended it; that 
the bidding continued about 15 minutes; that purchasers could have examined the property 
the day before the sale without any difficulty; that he was present at the sale of the remain¬ 
ing 499 bales of damaged cotton on the 17th of April instant, which was made under Secor s 
direction, and that it averaged nearly $7 a bale less than the same kind ot cotton brought at 
the sale bv the marshal on the 9th of April, and nearly $S a bale less than the same kind of 
cotton brought at a sale of it by the marshal on the 10th of April : that it took Seeor’s auc¬ 
tioneer two hours and a half to get $98 and a fraction per bale, selling the cotton in lots of 
from eight to six-three bales in a lot, while the marshal’s auctioneer, selling it in lump, 
occupied only some 15 or 20 minutes and got $105 a bale for it; that the marshal’s sale was 
attended by the class of buyers who usually purchased damaged cotton, and that they bid at 
the sale; and that no public protest of unfairness or impartiality or undue haste was made 
by any one. 

“ The witness, Archibald M. Griffin, called to sustain the charges, on his direct examina¬ 
tion, testified that he attended the sale; that the opportunity allowed for an increase of the 
bid of $105 per bale was ‘ pretty short,’ in his opinion ; that he had made up his mind to bid 
$125 a bale, but not all at once ; that he cannot say how much time the bidding consumed ; 
that the proceedings at the sale were ‘such as are ordinarily pursued at sales,’ and that he 
‘saw nothing unusual; that he thought the bid of $105 was disposed of a little in haste.’ 
On his cross-examination this witness testified that he knew of ttie sale ot the 9th of April 
two days before it took place; that there were some purchasers on the ground 15 or 20 
minutes before the hour of sale; that his own last bid was ‘ about $100;’ that ‘there were 
two or three bids after he made his last bid ;’ and that lie made no protest at the time the 
property was knocked down to the $105 bidder, of any unfairness or partiality, or want of 
opportunity to increase bis own bid. 

“Charles T. Ketchum, a cotton ‘picker,’ and brought as a witness to sustain these 
charges of malfeasance, testified on his direct examination that he was piesent at the sale on 
the 9th of April; that he bid $102 50 a bale ; that he thinks he would have bid $107 50 for 
it, but that the property was knocked down ‘almost instantaneously’ with the offer of $105. 
On his cross-examination he testified that he knew of the intended sale a week beforehand; 
that the usual class of purchasers, namely, ‘ pickery men,’ attended it; that his ‘ first and 
only bid was $102 50;’ that the bidding was spirited until it reached $100; that he was 
‘ not particularly anxious to get the cotton at the price of $107 50 per bale, although being a 
picker it would have been worth that to him !’ That he made no public protest at the time 
to the marshal or the auctioneer, of unfairness or partiality, or the want of opportunity to 
bid ; and that although he subscribed his name to an affidavit containing allegations of 
improper conduct by the marshal, and although th ejurata is dated the 18th of April, 1866, 
aud although it states he subscribed and verified the affidavit on that day, that the truth is 
he signed it two or three days before, aud never swore to it at all. 

“ B. C. Gallup was next put on the stand as a witness in support of the motion. His 
examination developed that some owners of ‘pickeries’ had met together on the morning of 
the 9th of April instant, and joined in an agreement to buy these 454 bales of cotton, pro¬ 
vided they could get them for $100 a bale, and that they also agreed not co bid against each 
other at the sale. He further testified that this arrangement was acted upon through the 
instrumentality of a broker employed for that purpose. 

“Such combinations as this are wholly unlawful. They are against the spirit of fair deal¬ 
ing. They tend to mischief, and are contra bonos mores; and if in this case it appeared that 
the combination prejudiced the sale of the cotton, I would now on my own motion order a 
resale; not, however, for any wrongful act of the United States officers, but because of the 
illegal attempt to prevent competition at a public auction. The discovery of this purpose is 
important in a two-fold aspect. It may be, and it is hoped that upon this declaration of their 
illicit character it will, discourage similar agreements in the future, and it furnishes a safe 
rule for determining the real value of trie property sold on the 9th of April by the marshal. 
It is in proof that damaged cotton is more valuable to a ‘picker’ than to an ordinary 
purchaser; and these experienced buyers, upon consultation, agreed, unless they could get 
it at $100 a bale, the speculation would be unprofitable. 

“This, added to all the other testimony in the case, and especially to the proof that so 
much of the balance of this lot of damaged cotton as was sold uuder the stipulation of coun¬ 
sel for claimants and salvors did not bring within $5,000 of the price obtained for the same 
quantity and quality sold under the decree of the court, is satisfactory evidence not only 
that the combination of the ‘pickers^’ failed to accomplish any baleful result, but that the 
sale by the United States marshal was prudently conducted, and that the objections taken 
to his proceedings do not rest upon a meritorious or substantial basis. 

“It is one of the most observable facts in this case that while the witnesses, who bid at 
the sale by the marshal, allege in terms of more or less uncertainty, that his auctioneer did 
not dwell long enough upon the bid of $105 to enable them t» advance upon it, none of 
themselves, or any other bidder, made public offer of a larger price than the sum for which 
the cotton was finally knocked down to the purchaser. 

“ And of the second of the alleged causes upon which this motion was sought to be main¬ 
tained, namely", that the cotton was sold without sufficient notice, I deem it proper to 


91 


remaik that the court directed notice of the sale to he given in two of the daily newspapers 
printed in Mobile, by advertisement to be inserted daily for six days consecutively before the 
d R .} of sale, and that this direction was fully complied with, as will more tully appear by 
reference to the files of this court. 

As no pi oof even contributing to establish the accusations made against the marshal 
has been adduced, it is not necessary for him to interpose a defence, and this motion is denied, 
with costs. 

“RICHARD BUSTEED, 

“ U. S. District Judge for Alabama. 

“Mobile, April 21 , 1866.” 


Q. State whether that opinion contains a correct statement or review of the testimony 
and tacts in the case.—A. I thought it was exceedingly unfair. And my intention was, at 
the time, to make a scathing criticism upon the decision; but upon the advice of my friends, 
1 determined not to do so. It does not, in my judgment, contain a fair statement of the 
testimony and proceedings in court. 

Q. In what respects does it depart from the truth.—A. At this length of time, having 
made no notes, I could not undertake to state all the points in which it deviated from the 
truth. It gives an unfair and improper air to the testimony, and states the result of it as 
widely different from what, in my judgment, it was; for instance, the criticism that was 
made upon the use of the affidavits, and the remarks made upon them, I thought exceedingly 
unfair. The history of that matter was this: I made a motion, or at least served notice that 
a motion would be made, upon a specific day in Aprih—I think on the 13th day of April, or about 
that time. Uncertain as to what course the judge would require to be pursued in the production 
of testimony when the question came up upon the motion, whether he would require the wit¬ 
nesses to be present or would receive their affidavits, I made inquiry of him upon the subject. 
He directed me to serve copies of the motion papers upon the district at torney for the marshal and 
upon the purchaser. He said he thought the proper course would be to hear the case upon affi¬ 
davits, but that his own preference always was to examine the witnesses upon the stand : that 
he, however, would receive the affidavits. The next day, or very shortly after, I was informed 
that the persons who were present and cognizant of the facts necessary to be proven did not 
want to sign their affidavits. I mentioned that in court, and remarked that if the court 
required the affidavits to be produced I would probably have to take a different course ; that 
some of the witnesses, I understood, were unwilling to testify voluntarily, and that I would 
have either to abandon the motion in that form or adopt some other course. Upon that, the 
judge directed that the witnesses should be subpoenaed to be in court upon a given day. I 
myself had written a form of notice in pencil; handed it to Mr. Secor, and told him to have 
it copied by one of his clerks, and, as I was very much hurried, to sign my name and have 
the notice served on the purchaser of the cotton. He told me the general nature of the testi¬ 
mony that could be procured I wrote, perhaps in pencil, and perhaps in ink, a general 
form of affidavit, and handed it to him, stating that this was the nature of the affidavits that 
should be furnished and served upon the other parties. The affidavits so prepared were signed 
by some, and others declined to sign them, because they did not want to seem to volunteer 
their testimony. That is the way in which these names happened to be signed by the par¬ 
ties at different dates, and in some cases were not signed by them at all. 

By Mr. Eldkidge : 

Q. Did the judge know how these affidavits were gotten up.—A. In regard to that I will 
state, that during the progress of the trial a paper was in the hands of Judge McKinstry on 
the other side, who proposed to examine one of the witnesses upon it. I objected, and stated 
that that was my paper. The inquiry was made whether it was not an affidavit. I said 
that it was an affidavit; but that until I had offered it in evidence, it was not a paper in the 
case and no person had any right to make an examination upon it. I learned that, in one 
respect, I had made an error; that this was a copy of one of the affidavits which, by direc¬ 
tion of the court, had been served, but unknown to me, upon the purchaser, the broker. In 
view of the difficulties before stated, I had countermanded the order in regard to the affidavits, 
but this one paper had gone out. That led to the statement that the affidavits of all the wit 
nesses had not been obtained, and that is my answer to the question whether the judge knew 
the manner in which these affidavits had been obtained. It came out in the controversy 
which arose about this paper and how this affidavit came to be prepared by me. This was 
during the progress of the trial, and before the opinion of the judge was given. 

By Mr. Smith : 

Q. Go on and state whether the review given in this opinion of Judge Busteed, in refer¬ 
ence to the manner and substance of the testimony given by the witnesses, presents a correct 
or a false view.—A. I have already stated that I did not think at the time it presented the mat¬ 
ter correctly. There w r as a criticism upon the opinion published at the time by Mr. Secor 
himself, who took exceptions to it 

Q. Who is Mr. Secor.—A. Mr. Secor is a man living in Mobile, well known and well 
reputed there as a merchant’s accountant. 


Q. If he could have been discredited in any way, would it have been difficult to obtain the 
witnesses to do it.—A. He was a man well known throughout the mercantile community 
there, and, if his character could have broken down, it would not have been difficult to ob¬ 
tain the witnesses to impeach him. 

Q. Who is Charles Ketchum.—A. Charles Ketchum has been connected with cotton busi¬ 
ness in Mobile for the last 20 or 25 years. He was at one time a cotton broker, and later a 
cotton picker He is a man of excellent character, well known in town. 

Q. Whatever became of the proceeds of this cotton which Judge Busteed had sold. I mean 
the 454 bales.—A. The proceeds amounted, as I said, to something like $45,000. The other 
Cotton, which was turned over to the stipulators, was also sold, and brought nearly an equal 
sum, I think $43,000, or something like that. After the adjustment of the amount of salvage 
and costs and expenses under the decree, all the money was paid out by the court, except 
about $15,000, which balance was retained in court, subject to the final decision of the claim 
of the United States to the 227 bales of cotton. I sought repeatedly of the clerk to obtain 
that money, but I could not obtain it. It was paid out, I learned, I think in November, 1867. 

Q. A court of admiralty is a court supposed always to be in session.—A. Yes ; there are 
no regular terms, except the district sits regularly twice a year, and holds adjourned terms 
for any cases as they arise. 

Q. Do you know what, in fact, became of this money; whether Williams and Garner, of 
the firm of Price, Williams & Garner, did not finally divide the money with Andrews.—A. 
I was so informed; I do not know the fact, but that was the street rumor. 

Q. Have you been attending that court for some considerable time.—A. I have. 

Q. Have you ever heard, from that day to this, of any trial or decision in regard to the 
proceeds of the 454 bales of cotton.—A. To explaiu that matter would require a long state¬ 
ment. The right of the United tStates to the 227 bales of cotton was eventually denied. 

Q. But where the money went you do not know.—A. I know the money was in court. I 
applied for it personally, and could not get it. I understood that Mr. Ingersoll received the 
money from the court. I do not know that he did. He was one of the claimants, and one 
of my clients. 

Q. Did you prepare this printed statement in reference to any charges being presented 
against Judge Busteed, or at my request, or anything of the sort.—A. Not at all. 

By Mr. Churchill : 

Q. Are the statements in the opinion of Judge Busteed in this question correct, so far as 
you know, as to the price which these 454 bales brought being substantially the same as that 
which the other cotton saved brought.—A. In regard to that, these 454 bales were selected 
out of the 900, and were a much more valuable lot than the remainder. But, as I said before, 
I was not present at the sale. I never saw the other cotton, and therefore I cannot give such 
information as would be testimony in the matter. 

Q. Who are the parties in Mobile most likely to be the best buyers for cotton of that de¬ 
scription.—A. The cotton-pickery men. 

Q. Are they a class of men, any one of whom could buy 450 bales of cotton, and pay for 
it in cash at the time.—A. No, sir. 

Q. Did you make any motion to retax the costs in this case ; and if so, with what results.— 
A. I did, and a reduction was made upon the bill of costs as originally presented. As finally 
determined upon and allowed by the court, the amount of costs was $10,414 63. 

Q. Since you have been practicing law have you ever known anything approaching such 
a bill of costs.—A. I never have. 

Q- How was your motion to retax the costs entertained and treated by Judge Busteed.— 
A. JI he demeanor of the judge towards me was rough, but not so brow-beating and insulting 
as his demeanor had been upon the trial of the motion to set aside sale. 

By Mr. Eldridge: 

Q. What was his manner.—A. My motion to retax was refused, as I thought, with great 
want of impartiality, and the manner of the judge to me was most unpleasant, but not so 
bad as upon the trial of the motion. 

Q. Ihen the statement you make of it was that it was simply unpleasant.—A. I do not 
know that I could express it in stronger language. I do not think he received the motion 
fairly, or treated it impartially. That was the opinion I formed at the time. 

By Mr. Smith: 

Q. Were you present when another case of salvage was tried before Judge Busteed, in 
reference to a vessel that had been struck by lightning and sunk in the bay of Mobile.—A. 
Yes. 

Q. State the circumstances of that case.—A. On the morning of the 17th of April the ship 
Albert Gallatin was struck by lightning, and salvage services were rendered. On the morn¬ 
ing of the 18th a vessel was discovered to be on fire, and salvage services were rendered. 
Libels were filed in the cases of these two vessels. The property had been sold by the agents 
of the ships, the proceeds amounting to about $400,0U0. There was standing ill the Bank 
of Mobile to the credit of the agents about $350,000. The money was seized by the court 
and ordered to be placed in the registry of the court, and I suppose it is there yet. 


93 


By Mr. Woodbrjdgf, : 

Q- Bpon what ground was it taken possession of by the court.—A. XTpon the ground that 
it was the proceeds of salvaged goods, and subject to the lien of the salvor. 

By Mr. Smith : 

Q. Did you ever hear of a case of the salvor getting the entire proceeds.—A. No, sir. 

Q. That occurred in the open bay and in pleasant weather, did it not.—A. Yes, sir. 

Q. What would have been the extreme amount of salvage.—A. The rule, as 1 understand, 
in admiralty tor derelict property is to allow 50 per cent. But so large an amount is very 
rarely allowed. Salvage services vary from little more than compensation for the work and 
labor performed up to a very large sum of money, depending upon the risk, skill, and energy, 
the amount ot property saved, and the amount of property put at risk. 

Q. W hat would be an outside allowance in this instance to the salvors.—A. The best 
answer I can make to that would be to state the proceedings that occurred in court. The 
case itseli has not been tried, however. I should say an outside allowance would he 33£ 
per cent. The underwriters in these cases employed the Hon. William Marvin, formerly a 
judge ot the district court of the United States at Key West, to visit Mobile and aid me in 
the management of their cases. We applied to the court jointly, and asked to be permitted 
to remove, without bond or stipulation, one-half of the proceeds then in the hands of the 
court; and we stated, further, that, as to the salvage claimed in the case of the Talia, we 
were willing that the salvors should take a certain percentage of the amount, as to which 
we would make no question ; and in respect to the Gallatin, which was a much larger ship, 
and had a much larger amount of cotton, we were willing that a certain other amount should 
be taken as salvage, as to which we should make no question ; and for the remainder we asked 
that we might be allowed to stipulate. This motion w as peremptorily refused by Judge Bus- 
teed, the judge paying a high compliment to Judge Marvin, and using complimentary lan¬ 
guage to me, but remarked that he had never heard of such a motion in admiralty. 

Q. Did you consider that motion an unusual one.—A. No, sir; I w r ould not have made 
the motion if I had thought it unusual or improper. I think it w’as perfectly proper. 

Q. Who were these salvors ; what was their vocation.—A. The great bulk of the cotton 
was saved by men engaged in the lighterage and towage business in Mobile. Of course, 
the crews are sailors, ordinarily, with monthly or daily w r ages. 

Q. Were any of the salvor sailors from ships which were about to sail from port.—A. 
Yes. sir; there were two, and perhaps three, libels filed by the crews of ships lying in the 
neighborhood who claimed to have rendered some assistance. One was a Nonvegian vessel, 
one a Spanish vessel, and another, I think, a Swedish vessel. 

Q. Have the crews of these vessels all gone.—A. O, yes ; long ago. 

Q. Was there any good reason for refusing to allow the money which you, representing 
the claimants, consented to have paid to the salvors.—A. The proctor of the libellants, the 
gentlemen who represented the largest number of libels, objected to the motion in open court. 

Q. Who was he.—A. Judge Giandin, the present district attorney. 

Q. Was there any good reason shown why it should not be done.—A. I think not. 

Q. How long were you and Judge Marvin there engaged in trying to get some portion of 
the money out of the court.—A. We were there a number of days. I think we made appli¬ 
cation, in various forms, two or three times. Judge Marvin remained there upon that busi¬ 
ness two or three weeks, and, so far I know, that was his only business in Mobile. 

Q. Did he finally leave without accomplishing anything.—A. Yes, sir. 

Q. From anything there was in that case, should there, in your judgment, have been any 
difficulty in deciding it in the course of a few days.—A. I do not see any. 

Q. When Judge Busteed left there, did he leave without deciding it finally.—A. Yes, sir. 

Q. Was it under any promise of a speedy return and decision.—A. Judge Busteed stated 
that he expected to be back by the 15th of June, and that he would then take up the case 
and decide it. 

Q. Had you any occasion to make a deposit or deposits, for any of your clients coming into 
bankruptcy, of the moneys required to be paid into court.—A. 1 recollect personally deposit¬ 
ing in one instance. 

Q. What amount were you required to deposit—A. $70. The register in bankruptcy 
who required it was Worral, and that I understood to be a standing rule of the office. 

Q. Were you present in the court while the investigation of a writ of habeas corpus , at 
the instance of a man by the name of Towne, was going on, in which I appeared tor the 
suit.—A. Yes, I was there; I do not know whether I was there during the whole trial. 

Q. If you were there the first day, state what was the conduct of Judge Busteed to me 
that day.—A. Judge Busteed’s conduct to you was very overbearing, and in my judgment 
highly improper on the part of the judge, to counsel before the court. 

By Mr. Eldridge : 

Q. State what Judge Busteed said and did that was improper.—A. It is very hard, very 
difficult to describe a thing of that sort. The manner of the judge to the counsel was cap¬ 
tious, impatient, scarcely listening to anything that was said, sneering, and insulting. I do 
not know that, I can speak of it m any other terms: I cannot recollect at this time any spe¬ 
cific remarks that he made. 


94 


By Mr. Smith: 

Q. How long did this continue in that case.—A. There was more or less of it during the 
whole day. 

By Mr. Eldridge: 

Q. How did Colonel Smith act toward the judge.—A. During the day he acted respect¬ 
fully; I did not see any fault to Hud in the demeanor of Colonel Smith towards the judge 
during the day. * 

Q. What did you do after the court was over. 

(Question objected to by Judge Busteed and not allowed.) 

By Mr. Smith: 

Q. Were you there the second day.—A. I was there at the time you abandoned the case* 

Q. Did you hear me make any explanation of the position I occupied in that case.—A* 
Yes, sir; I remember you said to the court that you appeared in that case, without fee or 
reward, at the request of the attorney general of the State, who could not be present. The 
case was one in which there was an apparent collision between the judicial authority of the 
State and the judicial authority of the United States. 

Q. The next day when the case was continued, what was the course of proceeding.—A. I 
recollect it very well; a countryman—I do not remember his name—was under examination 
as a witness in the case, aud some paper was before the court, alleged, as I recollect now, to 
be a paper the witness had sworn to before some military tribunal; I remember the judge 
taking the examination of the witness out of your hands, and with this paper in his own hands 
he was interrogating the witnessa s to whether he had subscribed to it. The witness was 
desirous of looking at the paper; the judge, in what I thought at the time a very rude man¬ 
ner, snatched the paper from the hand of the witness, and holding it behind his back insisted 
that the witness should say whether it was the paper he had sworn to. It was this matter 
that attracted my attention particularly, and I remember that much of the proceedings. 

Q. Was the judge near to the witness.—A. Yes, the judge was in his seat, and the wit¬ 
ness was not in the box, but standing at his side. I remember that the witness remonstrated 
with the judge, aud said he could not answer unless he could see the paper, and that the 
judge insisted he must answer. There were some altercations in regard to it, and the judge 
was exceedingly overbearing to the witness; I do not know that any threats were actually 
used. In that state of the case, I remember your rising and a personal altercation taking 
place between you and the judge. 

Q. State what I said aud did.—A. I remember your rising, gathering your papers, and 
putting them into your green bag, remarking to the court that you could not consent to 
remain any longer and witness such a mockery of justice. I remember the reply of the 
judge: “Sit down, sir; I cannot receive such language.” 

Q. Did that order precede my remark, or follow it.—A. As I recollect, it followed it. 

Q. And thereupon I left the court.—A. Yes, sir; you left the court. 

Q. And that was the matter upon which he suspended me from practice.—A. Yes, sir ; it 
was upon that. 

Q John Hardy was marshal when the claim for these 454 bales referred to occurred.—A. 
He was. 

Q. Who was Jacob Wilson.—A. Jacob Wilson is a foreigner. I do not know where he 
comes from. He appeared to be the servant of the judge. 

Q. He was the man who sold the cotton.—A. That is my impression. I was not present. 

Q. Do you know anything about the seizure of these books from the treasury agent, 
Tomeny.—A. I have no knowledge of it. 

Q. Were you present at the trial of Gustavus Horton.—A. I remember being present a 
portion of the time. I do not think I was there the whole time. 

Q. State to the committee such facts as you observed during the trial in reference to the 
conduct of Judge Busteed.—A. I think the conduct of the judge upon the trial towards 
Horton’s counsel was very improper aud very unbecoming. Mr. Moulton appeared as coun¬ 
sel for Horton, and he was often, what I should designate as rudely, snapped up by the court. 

Q. What effect did it produce upon his capacity to defend his client.—A. He lost himself 
entirely. He did not seem to have auy capacity at all. 

Q. Did you hear the mode of examination.—A. I remember hearing some of the witnesses 
examined. I think Moulton finally refused to produce any more witnesses, and remarked 
that he would not produce any more witnesses to be treated in that way. 

By Mr. Eldridge : 

Q. Is Moulton an able lawyer.—A. I would not describe him as a very able lawyer. He 
is a practicing lawyer in our courts. 

Q. Was the judge’s conduct such as would have unmanned an able lawyer.—A. Unless 
he was a pretty cool one, I think it would. 

By Mr. Smith : 

Q. Did you ever have occasion to examine as to whether there was any record of the pro¬ 
ceedings kept at the court.—A. Yes. The minutes of the court were very irregularly kept, 


95 


and it was often very difficult to find from the records what had been done. It was very 
different from what we had been accustomed to. Under our rules previously the minutes 
had been made up every day, and were read in court the next morning. 

Q. Did these minutes contain a recoid ot the judgment and proceedings in court in 
extenso. —A. Yes, sir. 

Q. And constitute the record book of the court.—A. Yes; they constitute the record, 
behind which we cannot go. 

Q. To whose credit does the $350,000 or $400,000 referred to stand in the Bank of Mobile, 
and upon whose check can it be drawn.—A. I cannot answer that more specifically than to 
state the facts as I am informed of them. The rule required that the money should staud to 
the credit ot the court, to be drawn by the order of the clerk, countersigned by the judge. 

Washington, January 9, 1869. 

Petek Hamilton recalled, and examination continued. 

By Judge Busteed : 

Question. Were you born in Alabama.—Answer. No; I was born in Pennsylvania. 

Q. How long have you lived in Mobile.—A. Since 1835. 

Q. You and Mr. Robert H. Smith are very intimate personal friends, and have been for 
many years.—A. We are personal friends. There is no particular intimacy between us. 
We have been practicing at the same bar. 

Q. No other intimacy than that.—A. No, sir; we are very friendly. 

Q. When I went to Alabama first I was, so far as you know, an entire stranger to the 
whole State and people. — A. So far as 1 have any knowledge. 

Q. You recollect the argument before me in the case of the constitutionality of the act of 
Congress imposing the test oath on lawyers.—A. I do. 

Q. You recollect the general scope and drift of my decision.—A I do. 

Q. You recollect the proceedings in the case of Dexter.—A. I was there present occa¬ 
sionally. 

Q. You recollect the opinion in that case—the general scope of it.—A. I recollect the con¬ 
clusion you arrived at. 

Q. You have been in my court from the time I went there until I left last June.—A Yes, 
except during our personal difficulty, when I attended only as my business compelled me. 

Q. And except in the case of the Natchez cotton, on the question of the motion respecting 
the marshal’s sale, and on the question of the retaxation of the costs, you and I have never 
had the slightest disagreement in court. — A. With the exception of the Natchez case I never 
had any disagreement with you. 

Q. Either before or since.—A. There has been no personal antagonism. 

Q. You never complained of my manner in any other case.—A. No, sir. 

Q. Nor had occasion to.—A. No; your manner to me, except in that matter, was respect¬ 
ful and proper. 

Q. Excepting to Robert H. Smith, ,T. L. Smith, his brother, and Robert Inge Smith, bis 
son, how has my manner been to the profession generally in Mobile, so far as you know.— 
A. Sometimes rough, sometimes pleasant. 

Q. To whom have I been rough, with the exceptions I have named.—A. I think to Judge 
Dargan. 

Q. What are the peculiarities of Judge Dargan professionally and personally.—A. He is 
an eccentric man. 

Q Are not his eccentricities so entirely developed as to be likely to occasion at least some 
stiff demeanor on the part of a court towards him.—A. I hardly think that. 

Q. Does he not come into court sometimes with his coat sleeves rolled up and his shirt 
over his elbows.—A. Yes. 

Q Do you know that as a general thing my demeanor to Judge Dargan has been one of 
kindness notwithstanding his eccentricities.—A. I cannot say that 1 know that, but I think 
so; I have no reason to doubt that it has been so. 

Q. Can you name any other gentleman of the bar of Mobile with whom you have noticed 
anything in my conduct on the bench that would be unbecoming a judge.—A. I cannot 
call to mindeverything of that sort that occurred ; 1 do recollect a passage between you and 
John Hall. 

Q. Has he any peculiarities.—No, I think not. 

Q. Is he not a man very much addicted to inebriation.—A. I never saw him in that con¬ 
dition in court. 

Q. Does he not go around the streets of Mobile drunk.—A. Frequently he has not been 
as sober as he ought to be. 

Q. Can you name any other person except Judge Dargan, who has his little eccentricities, 
and John Hall, who has his eccentricities, and the Smith family, any other gentleman ot the 
profession in Mobile who had occasion to complain of my conduct or demeanor while I have 
been on the bench.—A. I think I mentioned Mr. Moulton yesterday in one particular case— 
the Horton case. 


96 


Q. Do yon not know that Judge Dargan used to visit my private chambers the same as the 
rest of the lawyers.—A. I do not doubt it, but I do not know it. 

Q. So far as you yourself are concerned, this Natchez cotton case was the only occasion 
when you and I bad the slightest difficulty. — A. Yes. 

Q. And you have nothing to complain of in my manner or anything else towards you, 
except in that case, have you —A. No, sir. 

Q. Do you not kn >w that I showed you letters from the Secretary of the Treasury, some 
time iu the early part of 1866, sanctioning the appointment of Rutus J. Andrews to repre¬ 
sent the government in certain cotton matters claimed by informers.—A. I do not recollect. 

Q. Will you say I did not.—A. I say I do not recollect it; I will not say that you did not. 

Q. So far as anything certain appears to your mind to the contrary, I might have done 
so.—A. I do not recollect anything about if, one way or another. 

Q. Our relations were of a character that would have made it quite probable, before the 
Natchez cotton matter.—You may have done so, or you may not; 1 do not recollect. 

Q. In the mouth of March and early in April, 1866, did you not meet me at dinner with 
citizens of Mobile and with members of the profession. — A. I did. 

Q. You dined with me at Mr. Gage’s house.—A. Not at his dwelling; at the chambers he 
occupied ; liis family was at the north. 

Q. You yourself invited me to your house to dinner on March 27, 1866.—A. I did, in the 
spring of 1866; I do not recollect the date. 

Q. And your family was there.—A. Yes. 

Q. And Mr. Andrews was also an invited guest—invited by you.—A. Yes. 

Q. You recollert the dinner given to me by General Withers on April 4.—A. I remember 
being at his house a few days after the. dinner was at my house; Mr. Andrews and Mr. 
Worrell were both there, I suppose as invited guests 

Q. You have already spoken of the high professional and personal character of Judge 
John A. Campbell, ex-judge of the supreme court.—A Y^es. 

Q. Do you know what his personal and professional relations with me have been since I 
have been in Alabama.—A. Friendly. I believe. 

Q. Do you not know that they have been friendly.—A. l"es, sir; I know that they have 
been. 

Q. Did you join in a letter to Judge Wayne, deceased, for the appointment of Mr. Law¬ 
rence Worrell as attorney pro tempore for the southern district of Alabama —A. I did. 

Q. Do you recollect what date that was.—A. I do not; it must have been early in 1866. 

Q. Who asked you to do that, Mr. Worrell or Judge Campbell.—A. Judge Campbell; he 
handed me the paper. 

Q. It was not done on Mr. Worrell’s request or mine.—A. No, sir; neither of you spoke 
to me about it. I think Judge Campbell handed me the paper. 

Q. Do you know whether Robert H. Smith signed the paper.—A. I have no recollection 
whether he did or did not. I barely recollect seeing the paper ; but whose names were 
signed to it I do not know. 

Q. Do you recollect whether Judge Dargan signed it.—A. I have stated that I have no 
recollection of any name that was signed to it. 

Q. Do you suppose, if I would read what purports to be a copy of it, you would recollect 
the names.—A. I do not think I would, for I do not think I ever saw the signatures. 

Q. Your relations with Mr. Worrell and with Mr. Andrews have always been of a pleas¬ 
ant and agreeabie character.—A. With Mr. Andrews they have beeu pleasant; with Mr. 
Worrell I have got into some little asperity. 

Q. The difference between you and myself, in reference to the Natchez cotton case, occur¬ 
red somewhere between the 19th of April and the *27th of April, 1866 ; did it not.—A. The 
outbreak between you and myself occurred on the 19th of April, iu the court-room ; when 
1 considered myself very grossly insulted. 

Q. You were very angry, were you not, that day.—A. I was very angry, but at the same 
time very cool. 

Q. And the bare recollection of it makes you a little angry now.—A. No, sir ; it has 
passed away. 

Q. You were angry enough, if you had been near me, to have killed me.—A. That is a 
pretty strong expression. 1 was angry enough, if I had beeu within arm’s reach of you, to 
have been personally violent; the impulse of passion was certainly very strong. 

Q. And I was pretty angry too.—A. I believe you were. 

By Mr. Eldridge : 

Q. What particular thing was it that would have induced you to strike Judge Busteed, if 
he had been within reach.—A. The particular thing was the direct denial of my veracity; 
but there was a series of things going on the whole day. 

By Judge Busteed: 

Q. You made a verbal motion to set aside the sale by the marshal.—A. So far as the 
motion in court was concerned, it was a verbal motion ; it was on a written notice, how¬ 
ever. 


97 

Q. And there were about 1,000 bales of cotton in all, saved from the Natchez.—A. Some¬ 
thing about that. 

Q. And more than half of the whole was allowed to be taken out of court on your stipu¬ 
lation.—A. Yes, sir; on the stipulation of the claimants. 

Q. And the reason for my refusal to allow the orher half to be taken away was on account 
of the claim set up by Andrews for 227 bales for the United States.—A. That was the reason 
assigned. 

Q. You spoke about the presence of marks on these bales of cotton ; did you yourself 
examine them.—A. I stated yesterday that I had never seen a bale of that cotton. 

Q. Then as to the existence of those marks being on those bales of cotton when I made 
the refusal to allow the whole of the cotton to be taken out of court, you knew nothing of 
their condition.—A. I have not a particle of personal knowledge. 

Q. Did you ever attend a sale of cotton yourself.— A. I never attended for any purpose of 
purchase or anything of that kind ; I know nothing about the handling of cotton. 

Q. 1 recur to this motion to set aside the sale made by the m irshal; did I not, on several 
days, call your attention to the offer on my own behalf.—A. On one day you did. 

Q. Only on one.—A. My recollection is only on one. 

Q. Will you state that I did it only on one.—A. My recollection is that you did it only 
on one. 

Q. Do you not recollect telling me on one of the occasions when I called your attention to 
the motion, that you could not get the witnesses into court, that they had a reluctance to come 
in and swear about it.—A To that question I say no. 

Q. Do you not recollect my telling you that 1 would issue subpoenas for them and bring 
them there whether tbey were willing or not.—A. A remark of that sort was made ; I would 
like to state the facts as my recollection enables me to. The notice that I served on the pur¬ 
chasers was that on the 13th of April I would make a motion to set aside the sale. My 
recollection is that on the J 3th of April I mentioned the'matterin court myself, but the court 
was busy, and said he would hear the motion at another ’ime, probably the next day or the 
day after; 1 inquired of the court what his practice would be in a motion of that sort, to hear 
testimony by affidavit, or to have the witnesses on the stand. The answer of the court was 
that, in general, he preferred to receive testimony direct from the witnesses, but that he 
believed the practice was, on motions of that sort, to receive affidavits. He directed me to 
furnish to the district attorney and to the purchasers copies of the motion papers, as the judge 
called them. Perhaps it was the next day or the day after, at all events shortly after, that 
the matter was mentioned in court, whether by myself or by the judge I do not recollect. I 
stated that I was informed that the witnesses were not willing, voluntarily, to step forward 
and furnish the affidavits, and I intimated that I would either have to withdraw the motion 
or the witnesses should be put upon the stand. .Judge Busteed directed the names of the 
witnesses to be furnished him, and directed subpoenas to issue to the witnesses, paiticularly 
to those who had refused to sign affidavits. 

Q. Who appeared for the marshal on the argument of the motion to set aside the sale.— 
A. Mr. Alexander McKinstry. 

Q. A lawyer of good standing.—A. Yes. 

Q. Has been judge of some local court for many years.—A. He was judge of our city 
court for a number of years. 

Q. A controversy took place between you and Judge McKinstry on the trial of the 
motion.—A. A very short one. 

Q. But very spirited while it lasted.—A. It was a positive assertion on my part of a right. 

Q. Did not your refusal to give the court affidavits which you held in your possession, and 
which you claimed was a private paper on that hearing, lead to whatever difficulty occurred 
between the court and yourself; was not that the first tiling that led to it.—A. No, sir. 

Q. What was the first thing that led to it, save that —A. The first thing that led to it wa- 
the spirit with which you received the motion when I made it in court. 

Q. Such refusal as I have spoken of in my question did actually occur.—A. No, sir; I 
refused to furnish the paper, which I considered was my property and not the property of 
the court. 

Q. And I insisted, did I not, that you must give it to me.—A. Yes. 

Q. Was not that the very affidavit that contained the jurat that all the witnesses who bad 
signed it were sworn on the day when the jurat bore date.—A. It may have been; I do not 
recollect certainly. 

Q. If not that, what else could it have been.—A. I had several affidavits—two or three 
affidavits. My recollection is that one paper was signed by a number of persons, and I think 
that one or two other affidavits were individually signed. Which of those papers this was I 
do not at this moment recall. 

Q. You have no doubt of the fact that it was the one that was signed by several wit- 
nesses.—A. I have stated that I have no recollection of it positively. 

Q. But it was an affidavit made on the motion.—A. It was an affidavit connected with 
the motion. 

Q. Of that you have no doubt.—A. None at all. 

7 B 


98 


By Mr. ELDRIDGE : 

Q. Had any portion of those affidavits been read.—A. No, sir. 

Q. Had they been offered to the court.—A. No, sir. 

By Mr. Churchill : 

Q. Had they been served on any parties to the motion.—A. My information was that one 
affidavit had been served on one party. 

By Mr. Eldridge : 

Q. Had this one been served, about which the controversy arose between you and Judge 
Busteed —A. This one had been served, but at the time I did .not know it. 

Q. Did the judge know it.—A. I do not know what his information was. There was 
noihing in the progress of the case which would put him in possession of that fact. 

Q. Did you present any affidavit on your motion at all —A No. The controversy began 
on the cross-examination by Judge McKinstry of one of the witnesses introduced by him. 

Q. How did the judge know you had such an affidavit.—A. Mr. McKinstry handed the 
witness on the stand the copy that was served, and at tlie moment he took the paper from 
the desk 1 thought it was the original paper which was in my possession. That is the way 
the altercation took place between Judge McKinstry and myself. I did not know that that 
affidavit had been served, because on receiving intimation from the court that he would 
examine witnesses orally, I sent out and told the parties that they need not take any more 
trouble about serving affidavits, and I did not know that any bad been served. 

Q. You had abandoned the idea of presenting the motion on affidavits.—A. Entirely. 

By Judge Busteed : 

Q. This was a motion made by the court without a jury.—A. Y r es. 

Q. And on which the judge had to pass on the credibility of the witnesses. — A. Yes. 

Q. In which there could not be the intervention of a jury, except by the order of the 
ccurt —A. No. 

Q. Do you recollect that when the witnesses came into court upon that motion, the court 
ordered the marshal to provide for their attendance in one of the rooms attached to the court, 
so that the witnesses should be examined separately, or that none of them should be in court 
while any of them was being examined.—A. J remember that after Mr. Secor had been on the 
stand a few minutes you did make an order of that sort. 

Q. Your disapprobation of my manner of examining these witnesses, in which I had to 
conform to my conscience, was so great that you refused to go on and call any more of the 
witnesses.—A. Yes; after three or four had been examined. 

Q. And then I called them one by one and examined them as I had done the previous one ; 
and if so, which of them complained to you personally that my manner was brow-beating 
and insulting to them.—A. Yes, sir; a good many spoke to me of it. 

Q. Name one of them.—A. Y'es ; Mr. Secor. 

Q. Aside from Mr. Secor.—A. Mr. Charles F. Ketehum. 

Q. Did any of the rest of them speak to you personally of that manner of mine? Did Mr. 
Lovett, of New Yoik.—A. Mr. Lovett spoke to me of your mode of examination. 

Q. My question is, did he complain that I had brow-beaten or insulted him —A. No, I do 
not recollect that he did. 

Q. Did Mr. Gallup, of Mobile —A. Yes, lie spoke to me. 

Q. What did Mr. Gallup say.—A. I cannot recall what he said, except that they all 
expiessed indignation at the mode in which they were treated as witnesses. 

Q. What did Mr. Ketehum say; give me tlie language.—A. I cannot give the language. 

Q. This opinion that was put into the* case yesterday by Mr. Smith, you say that you can¬ 
not point out in what respect it differs from the truth, but that it gave a false air to the testi- 
nn ny.— A. It made out a very different case, as I understood it. 

Q. Can you point out a single statement of that opinion which varies from the evidence 
given by the witnesses at the time, and reduced to writing by the court.—A. I cannot speak 
of what w'as reduced to writing by the court. 

Q. Can you point out a single variance between what you heard the witnesses say and the 
statement of what the same witnesses are represented as having said.—A. At this distance 
of time I cannot do more than to describe the opinion as giving a very unfair and incorrect 
version of the testimony furnished by the witnesses. 

Q. And you cannot state in what particulars, can you.—A. I cannot, now. 

Q Not in a single instance.—A. I cannot, now, unless I were to take time and co through 
with it carefully. 

G- You read the opinion yesterday and compared it.—A. 1 went over the paper yesterday ; 
but it has been now two years and a half since that occurred, and I cannot at this moment 
recall the detailed statement of the witnesses. 

Q Is there any variance between the fact and the statement that this affidavit purported 
to be subscribed and sworn to by seven persons on the 18th of April, 1866, and that on cross- 
examination it came out that two or three of the seven subsoibed a wmek before, and all of 
them three days before; and one of them whom they subpoenaed was called to the stand 


99 


by counsel, and testified, on examination by the court, that in fact the oath had never been ad¬ 
ministered to him at all. Are you able to say whether that is true or untrue as a matter of 
fact.—A. It came out on the testimony that the signatures of some of those witnesses had 
not been made at the time the jurat was dated—that they had signed it before they had actu¬ 
ally made the affidavit; and my recollection is that one stated he had never made the affida¬ 
vit at all. 

Q. Although his signature was there.—A. Yes, his signature was there. 

Q. And he was included in the jurat as having sworn.—A. The language of the jurat was 
“sworn and subscribed ” on a certain day. But that affidavit was not put in evidence. 

By Mr. Churchill : 

Q. Did the jurat state the time when the oath was administered to these affiants.—A. Of 
my own knowledge I do not know. 

By Mr. Eldridge : 

Q. You say that the affidavits were not put in evidence.—A. No, sir, they were not. 

By Judge Bu steed: 

Q. Was not that affidavit before the court.—A. It was before the court by your seizing it; 
it was not offered in testimony. 

Q. Did I not examine the witnesses to these affidavits and get out the facts stated in the 
opinion as to the jurat, and the time that the witnesses were sworn, and the fact that one of 
them was never sworn.—A. Yes ; but I state that the affidavits were not offered in testimony ; 
they were not placed before the court or offered at all. 

By Mr. Churchill : 

Q. Was the original affidavit before the court at any time on this examination, or was it 
only this copy of the affidavit that had been served.—A. As I said before, the controversy 
which sprung up between Mr. McKinstry and myself was about his-using a paper which, at 
the time, I thought was my paper, not being aware that copies of the affidavits had been 
served. 

Q. Was that copy the only paper before the court, or did you produce the original.—A. 
You recollect that in the discussion between Judge Busteed and myself he pointed to a time 
when he demanded a paper from me, and asked it that was not the beginning of the personal 
altercation. Judge Bustetd demanded of me a paper; it was the paper (I now recollect, 
although I did not recollect when he asked me) which contained the several names. I am 
satisfied now I had the original of that paper; it was taken from me by the court itself. 

Q. You did produce it.—A. I did not produce or offer it. He demanded it; at first I re¬ 
fused ; but he demanded it peremptorily, and 1 did not think it worth while to make a ques¬ 
tion upon it, and I yielded the paper. The paper was in possession of the court, but was 
not produced by me voluntarily. 

By Judge Busteed: 

Q. Do you recollect what Lovett swore on the hearing of that motion.—A. I recollect 
something of what was sworn. 

Q. Do you recollect his testifying that he saw a notice of the sale in two public newspa¬ 
pers in Mobile.—A. I do not recollect that. 

Q. That he attended the sale himself.—A. I remember that. 

Q. That the bidding continued about 15 minutes.—A. I recollect that. 

Q. That purchasers could have examined the property the day before the sale without any 
difficulty.—A. I do not recollect that. 

Q. Is there one thing incorrectly stated in my opinion.—A. I have stated that the general 
air of the opinion is adverse to my understanding of the facts of the testimony. 1 have not 
undertaken to point out the particular matters of fact to which I then objected, for I cannot 
recall them. 

Q. I understood you to say, a few moments ago, to the committee, that the evidence as 
stated in that opinion was unfairly stated.—A. Yes, sir. 

Q. Is that statement of Lovett’s included within that proposition of yours.—A. I spoke of 
the air thrown over the whole matter. 

Q. Do you now refer to any particular matter of fact in that opinion which you are will¬ 
ing to swear is unfairly and untruthfully stated in it; if so, what.—A. I have not undertaken 
to specify any one particular tact. 

Q. Can you now.—O, no, sir; not as called upon in that way; I cannot. 

By Mr. Woodbridge : 

O. Do you mean to be understood that the testimony is unfairly stated in that opinion, or 
that a cant is given to it so that the real effect of the testimony is not properly gathered 
from the opinion itself.—A. That is what I de.sire to express ; in other words, it occurred to 
me that the opinion as given by the judge was that which au advocate would put upon tne 
testimony, rather thau a judge tryiug the case. 


100 


By Mr. Eldridge : 

Q. May not your opinion, which differed from that of the judge, be the opinion of the 
advocate, while his is the opinion of the judge. — A. Undoubtedly you must make allowance 
for my position as an interested counsel in the case; of course 1 do not claim infallibility at 
all. 

Q. Is all the difference between the real facts as proved, and the facts as stated by the 
judge, such a difference as might be put upon them by an advocate; is that all you mean to 
be understood as saying when you say that there was an air given to it such as only an 
advocate would give to it.—A. No, sir ; I was more dissatisfied with it than that. 

By Mr. Woodbridge : 

Q. Are you prepared to say that you think there is a false statement of the testimony.— 
A. That was my judgment at the time; I am very reluctant to state these things now. 

Q. Are you able after this lapse of time to state any particular or improper false statement 
in the testimony.—A. I will mention this ; the current of the testimony undoubtedly showed 
that the sale was conducted in an exceedingly hasty manner. I think that, with the 
exception of Mr. Lovett’s testimony, the witnesses all agreed in the statement that from three 
to five minutes was the extent of the time occupied in the bidding; Mr. Lovett said about 
some J5 minutes. Without trying to say precisely what each witness said, the current of 
the testimony of all the witnesses established the fact, in my judgment at least, that an 
opportunity for an additional bid, after the bid of $105 per bale was made, was not given. 

Q. Supposing the statement of the testimony, as is detailed in this opinion by the judge, 
had been made by an opposing counsel, would you have deemed it an unfair or a false state¬ 
ment of the testimony.—A. If I had to reply to it I would have shown that it was utterly 
incorrect. 

By Judge Busteed : 

Q. You say that Archibald M. Griffin was examined as a witness.—A. Yes. 

Q. Will you state that he sw r ore that the opportunity allowed for an increase over the 
$105 per bale bid was pretty short, in his opinion.—A. I do not recollect the precise phrase¬ 
ology; I think he swore it something stronger than that, because Mr. Griffin was one of 
those men with whom I had conversed, while with some of the other witnesses I did not 
converse. I can state what Mr. Griffin’s testimony on that subject was. 

Q. Will you state that Mr. Griffin did not testify before me that the opportunity allowed 
for an increase over the bid of $105 per bale was pretty short, in his opinion.—A. I say that 
he testified that even more strongly than that is stated. 

Q. What did he say as to the time being short.—A. I think I can recall almost his 
expression. Mr. Griffin said he had been waiting about there for some time, and that after 
the sale began he was tired and w*as looking around for a seat; that he let his eyes fall, 
thinking he might find some place to sit down, when the bid of $105 was made, and that he 
was in the act ot sitting down when the hammer came down, and that he did not have the 
opportunity to make an additional bid ; he said he had gone there with the intention of bid¬ 
ding $120 a bale. 

Q. Will you state to the committee what Mr. Griffin swore, that he did testify that his 
highest bid was about $100.—A. No, I will not swear one way or another, for I do not 
recollect his testimony as to the bid actually made by him. 

Q. Will you swear he did not testify there were two or three other bids after he made his 
last bid.—A. No, sir. 

Q. Will you swear that Griffin did not testify before the court that he made no protest at 
the time the property was knocked down to the $105 bidder, of any unfairness or partiality, 
or want ot opportunity of increasing his own bid.—A. All the witnesses said they did not 
make any public protest. 

Q. Did you keep any notes of the testimony taken on that motion.—A. No, sir, I did not. 

Q. You did not take a single note—not one.—A. I certainly did not take any full notes of 
the testimony. 

Q. But you have to rely, after this lapse of time, on your recollection or your want of it.— 
A. Yes, sir; I very seldom take notes of testimony. 

Q. Mr. Secor, one ot the witnesses who complained that my manner was brow-beating, 
was largely interested, was he not, in having the cotton sold by the stipulators, and not by 
the marshal.—A. He was agent tor the parties, and I suppose would have made a commis¬ 
sion. 

Q. Do you not know that he would have made a commission if the cotton had been sold 
by the stipulators.—A. I suppose that he would ; I do not know. 

Q. Have 3 011 any doubt ot it.—A. I have no doubt that he would have made a demand 
for compensation. 

Q. Did he not actually get a very large amount of money on the sale, made by the stipu¬ 
lators, ot the 41)0 bales.—A. Mr. Secor was paid for his services as an adjuster and as an 
agent; how much he got I do not know. 

Q. Did it not amount to more than $2,000.—A. I do not know'. 

Q. Will you say it did not.—A. I say I do not know. 


101 


Q. It may have amounted to more.—A. I say I do not know. 

Q. It may have amounted to more.—A. Or less, for Ido not know. 

Q. You say you never examined the account of Mr. Secor’s charges on the sale of the 490 
bales of this lot of Natchez cotton.—A. I said so. 

Q. Do you say so now, again —A. I have said so, and say so again. 

Q. Did you ever examine a copy of an account furnished you on that subject —A. I have 
seen an extract from an account furnished by yourself to me. 

Q. Do you believe that to have been a correct extract of the account furnished to the 
underwriters of New York.—A. I have no reason to doubt that it was, and I will state that 
Mr. Secor’s charges were complained of by the underwriters. 

Q. Look at the paper shown you, and state whether you do not believe that to be a copy of 
the account which you have examined on that subject.—A. I think this is a copy of the 
statement which you furnished to me. 

Q. Have you any doubt of its correctness.—A. I do not know anything about it. I have 
no reason to doubt that you furnished me with a correct copy of what was given to you. 

Q. Do you not know that complaint was made to me by the Great Western Insurance 
Company of New York as to the charges made by Secor and others in the sale of these 490 
bales.—A. I know that you informed me that such complaint had been made. 

Q. In writing and officially.—A. It was a notification from you, and, I think, was signed 
“Richard Busteed, judge.” 

Q. Look at the paper shown you now, and say whether it is a copy of the notice served 
on you in that connection. (The notice is as follows: 


“Mobile, Alabama, January 17, 1867. 

“Sir: The accompanying papers are copies of originals in my possession, and which were 
addressed and sent to me by the Great Western Insurance Company of New York. They 
relate, as you will perceive, to certain legal transactions in the district court of the United 
States for the southern district of Alabama in admiralty, in which you appeared as counsel 
for the claimants, and of which, as such counsel, you had the general management, so far 
as the rights of the claimants were concerned. 

“I will be happy to receive from you, on or before the first Monday of February next, 
such explanation, in writing, as you may desire to interpose of all or any of the charges 
made against the claimants and owners of the property, in either or both the cases, for ser¬ 
vices rendered by yourself as proctor therein, or rendered by others under your allowance and 
with your knowledge, and to which exception is taken in the manner and form set forth in 
the accompanying papers. 

“Yours, &c., 


“RICHARD BUSTEED, 


“ United States District Judge , 8fc. 

“Peter Hamilton, Esq., Counsellor-at-Law.”) 


A. That is a copy of the paper served on me. I have the original here. 

Q. Accompanying that were copies of the accounts furnished to the Great Western Insur¬ 
ance Company.—A. Accompanying that were statements of accounts headed, “Memoranda 
of charges in the settlement of salvage, made by J. S. Secor, of Mobile, in the case ot the 
steam lighter Natchez,” &c. 

Q. From these papers Secor appears to have had more than $2,000.—A. Yes, sir; a little 
over $2,000. 

Q. And your own charges were $3,000.—A. I charged $3,000. 

Q. And that charge was one of the charges excepted to by the Great Western Insurance 
Company, to which my attention was called and to which I called your attention.— A. Yes. 

Q. Y r ou furnished me subsequently with written opinions of several lawyers in Mobile as 
to the reasonableness of your own charge.—A. I handed them to Judge Campbell ; and I 
notified you, in response to that letter, that a friend of mine would hand them to you. 

By Mr. Eldridge: 

Q. What jurisdiction had the judge over this matter.—A. I do not think he had any. 

By Mr. Churchill : 

Q. Did Mr. Secor’s pay come through you, or through the insurance company.—A. I do 
not know who paid it; it did not come through me. 

By Judge Busteed: 

Q. You say your clients objected to paying $10,000 costs; to what does that amount of 
costs refer—to the sale by the marshal of the 454 bales, or to the sale of the 1,000 bales. — A. I 
say the $10,414 were the total costs and charges ot the litigation attending the Natchez 
cases. They were not confined to the sale ot the 454 bales or ot the 4(50 bales; they weie 
the total cost and charges paid by the direction of the court. 

Q. Look at the paper now shown you on this question of the costs, and say whether it is 
in your handwriting.—A. Yes; it is in my handwriting—all above my signature. 


102 


(The paper was read and put in evidence, as follows: 

* “Mobile, vfymJ 24, 1866. 

“Sir: I herewith hand you, for your information in making up the decrees for salvage in 
the Natchez cases— 

“1. Account of sales of 454 bales of cotton by the marshal, with charges thereon of $5,665 87. 
“ 2. Account of sales of 499 bales of cotton by Messrs. Woodruff & Parker, auctioneers for 
the stipulators, with charges thereon of $4,985 7U, made up largely of taxes. 

“ Respectfully, 

$5,665 87 “P. HAMILTON. 

4,985 70 


680 17 


“Hon. R. Busteed.” 

The marshal’s bill included storage and expenses of carriage from the wharf of the whole 
953 bales.) 

Q. Will you compute the difference between the two charges and tell me how much in 
excess were the charges of the sale made by the marshal over those of the sales made by the 
stipulators —A. The subtraction on this paper seems to be correct; the difference is $680 17. 

Q. Do you not know that the marshal’s bill of $5,665 87 included the expenses for the 
storage of the 499 bales of cotton sold by the stipulators.—A. I do not know; the bill of 
items will show. 

Q. Do you know that it did not include storage ot the whole lot of cotton and the expenses 
of its carriage to the wharf—of the whole 953 bales.—A. I do not know whether it did or not. 

Q. When was this Exhibit A prepared, and for what purpose.—A The exact date I cannot 
give; some time during the summer of 1866. The purpose for which it was prepared was 
this: Mr. Secor called upon me for a statement of these proceedings, to be furnished to the 
parties whom I represented—the owners of the cotton. I declined preparing six different 
statements in the matter, because it would involve too much time and too much trouble; but 
finally I concluded I would make one and have it put in print; and this was the statement. 

Q. I see there is no imprint to this paper; where was it printed.—A. In Mobile. 

Q. Do you know why the imprint was omitted from this pamphlet.—A. I do not. 

Q. Where in Mobile was it printed.—A. I think it was printed at Thompson’s printing 
office, corner of Waters street and Planters street, I think. 

Q. How many copies of it were printed.—A. Some 20 or 30. 

Q. No more than that.—A. No, sir. 

Q. Who paid for its being printed.—A. I think it very likely that T paid for it, but I do 
not recollect; I had two or three briefs in the hands of the printer, and 1 think they were all 
paid for at the same time. 

Q. To whom did you send copies of it.—A. I gave five or six copies of it to Mr. Secor, to 
be sent to the owners of the property. 

Q. Did you send one to the Great Western Insurance Company, of New York.—A. I did 
not. 

Q. Did you direct one to be sent.—A. I did not. 

Q. Do you know of their having got one.—A. I believe they did, but I do not know it 
personally. 

Q. Who gave Robert H. Smith this copy.—A. I do not know ; it is very likely I may 
have given it to him, but not recently. 

Q. Is it not a fact that you gave it to him.—A. I have no doubt I gave it to Mr. Smith, 
but not for the purpose of this case. 

Q. As to this decree by default in reference to the 227 bales, do you not recollect that the 
judge complained that he had been cheated by that judgment taken by default in the favor 
ot Price, \\ illiams &- Garner? Do you not know that it was a matter of complaint, and that 
the judge ielt very sore about it.—A. I remember something connected with the examination 
into the title to these 227 bales; that you did make a remark of that sort—that you had been 
surprised. 

Q. Judge Campbell, who filed the libel for the 227 bales, was not himself in court, w*as 
he, when the judgment by default was given.—A. I do not know ; I think not; I think that 
the default was called for by John T. Taylor. 

Q. And the title of the cause was “The United States against Williams & Garner.”— 
A. No ; it was “Williams & Garner against the steamship Euterpe.” 

Q. And that involved these 227 bales of cotton which Mr. Andrews was claiming for the 
government.—A. I did not, and do not, know that Andrews was then claiming them for the 
government. 

Q. It involved these identical 227 bales, did it not.—A. Yes, sir, it did. 

Q. Do you not know that Judge Campbell, as attorney for Williams & Garner, finally 
got judgment for the proceeds of the sale of these 227 bales of cotton, Mr. Andrews having 
failed to make good the title to the government.—A. I know that the claim of the United 
States was dismissed by the court. 


I 





103 


Q. Do you know on what ground it was dismissed.—A. I do not know the particular 
ground. I was present when the question of title was tried before you. 

Q. And there was a failure to make good the title of the United States.—A. I thought so. 

Q. And I thought so, did I not.—A. So it seems. 

Q. And I gave judgment against the United States and in favor of the claimants.—A. Yes. 

Q. Who is A. J. Ingersoll, to whom this money was paid in Mobile.—A. A commission 
merchant in Mobile. 

Q Was he entitled to receive this $15,000.—A. He was one of the claimants of all that 
cotton. 

Q. Was he entitled to receive it by the decree of the court.—A. Certainly, sir, as a claimant. 

Q. Who is Garner, the claimant, with Price Williams, of this cotton.—A. He is a merchant 
of Mobile. 

Q. On the motion to retax the marshal’s bills of cost on the sale of the 454 bales of cotton, 
who appeared as counsel for the marshal.—A. Alexander McKinstry. 

Q. Mr. Andrews did not appear as counsel, did he, on the motion to retax.—A. No, sir. 

Q. This brings us down to the evidence which you gave in relation to the salvage cases 
that are now pending in the district court of the United States for the southern district of 
Alabama, growing out of the loss, on the 17th and 18th of April, 1868, of two vessels in 
Mobile bay. Let me ask you whether’ Robert H. Smith, to your knowledge, is proctor for 
any libellant in any of those cases.—A. I think not. 

Q. And his interference in those charges are that of a mere stranger, so far as you know.— 
A. Mr. Smith is not interested in that litigation, so far as I know 

Q. Do you know whether he is a relative, by blood or marriage, to any of the libellants 
or of the claimants.—A. I do not know that Mr. Smith is connected in any way with any 
of them. 

Q. You appear for the claimants in those cases.—A. I do. 

Q. They are growing out of the salvage of the bark Talia and the ship Albert Gallatin.— 
A. Yes, sir. 

Q. You stated yesterday that there was standing to the credit of the agents of those two 
ships, in May last, a sum of some $350,000. Are you not mistaken as to the manner in which 
the credit was entered on the books of the Bank of Mobile.—A. I think not. I stated yes¬ 
terday that the amount in round numbers, was $350,000. I have a memorandum, which 
gives the exact amount $339,000. 

Q Do you know whether the credit was, “on account of those whom it may concern”— 
in that very language.—A. My information is that it was “ to the credit of Daniel Wheeler 
& Co., consignees of the bark Talia,” $88,556 63, and “to the credit of A. J. Ingersoll & Co., 
consignees of the ship Albert Gallatin,” $250,048 92—both as a special deposit. 

By Mr. Woodbridge: 

Q. In your testimony of yesterday, I understood you to say that there was this sum of 
$350,000 in round numbers deposited in the Bank of Mobile, and that the rule of the court 
was that it was to be drawn on the checks of the clerk, countersigned by the judge of the 
court. Did you not so state yesterday.—A. Something like that. I said that the money 
was seized by the order of the court and placed in the register of the court, but still it stood 
in the Bank of Mobile to the credit, I suppose, of the court, and to be drawn out in the 
mode specified by a rule of the court. 

Q. Does not your memorandum show a different state of facts.—A. Not at all. These 
were the eutries prior to the change of account—prior to the seizure. 

By Mr. WILSON : 

Q. By whom was that money paid in to the credit of those parties.—A. It was paid in to 
the Bank of Mobile by the gentlemen whose names I have given. They were the con¬ 
signees of the vessels, and managed the business. They sold the cotton, received the 
money, and deposited the amount to their credit in the Bank of Mobile. 

By Judge Busteed : 

Q. The 12th of the charges of Robert H. Smith is that in these cases I refused to allow 
the usual admiralty stipulation to be taken. Is that true. Was not this property taken out 
of the hands of the marshal on admiralty stipulation. Did not Charles Walsh, and others, 
give a bond for $50,000.—A. This amount of money was never taken out of the hands of 
the marshal. 

Q. The charge is that I refused to allow admiralty stipulation to be taken in these cases. 
Is that true.—A. So far as that $339,000 is concerned, it is true. 

Q. Was there uo stipulation for the cotton libelled.—A. There was a stipulation in the 
early part of the case for $10,000, which was vacated. 

Q Who made the application to take the property out of the hands of the marshal— 
what proctor.—A. I did. 

Q. What bond did you offer the court.—A. I offered a bond of $50,000. 

Q. Was that taken and approved.—A. Yes. 

Q. On that bond being taken and approved, did not the stipulators, or some other per¬ 
sons than the marshal, sell the whole of the cotton.—A. Yes. 


104 


Q. "Was not the bond for $50,000 given before the sale.—A. Yes. « 

Q. Was not the fact noticed in the morning papers that the sale of a part of the cotton 
brought upwards of $100,000.—A. It may have been noticed in the papers ; 1 do not recollect. 

Q. The fact is that the sale did bring this amount of $539,000.—A. Yes, sir. 

Q So that the bond stood in the court lor $50,000, and the fact was that the proceeds of 
the sale were nearly $340,000. Was it not so.—A. There was a bond standing there for 
$50,000, and the property sold for nearly $340,000. 

Q. Did you, as proctor for anybody, offer to increase the bond.—A. No, sir. 

Q. Did you, as proctor, inform the court of the amount of the sales of the property.—A. 
No, sir. 

Q. And of the inadequacy of the bond —A. I gave you no information about it at all. 

Q. Did you, as proctor, inform the court of the probable value of the property that was 
bonded at $5U,0(JO.—A. No, sir; I gave you no information as to its value at all. 

Q. Dave you any reason to suppose or know that the court had any knowledge of the 
value of the property for which it took a stipulation of $50,000.—A. 1 know nothing about 
it. I had no intercourse with the court about it. 

Q. Have you any reason to know or believe that the court had any knowledge of the 
value of the property —A. I have no means of knowing one way or another about it. 

Q. The 12th of these articles of Robert H. Smith says that I caused the cotton to be sold 
at auction. Is that true.—A. No, sir ; it is incorrect. 

Q. It is untrue, is it not.—A. It is untrue, inasmuch as it is not the truth. 

Q. Had the court or the marshal anything on earth to do with the sale of that cotton.— 
A. No, sir. 

Q. When did Judge Marvin come into Mobile on this business.—A. I think about the 
20th of May. 

By Mr. Wilson : 

Q. Was there at any time an offer made to enlarge the bond given.—A. No, sir; there 
was not. That matter can all be explained. 

By Judge Busterd : 

Q. Did you not introduce Judge Marvin to me in open court on 21st May, 1868, and state 
that he came to assist you in trying the salvage case of the Talia and Albert Gallatin.—A. 
I think tie was introduced by Mr. Ingersoll, but 1 was present at the time. 

Q. Did you not state yesterday that you introduced him to me.—A. No: I think not. I 
remember that he was introduced to you, but I think that it was by Mr. Ingersoll, though I 
was present at the time, I think. 

Q. On that day there was a good deal of discussion between yourself and Judge Marvin 
on t tie one side and the proctors on the other side, in reference to those charges.—A. No, sir ; 
not on that day. It was some days afterwards. 

Q. Was it not the next day.—A. I do not recollect. 

Q. Do you know Mr. Henry St. Paul.—A. I do. 

Q. Was he proctor in some of those matters.—A. Yes. 

Q. He filed the original libel.—A. He filed the first libel. 

Q. He was in couit when you introduced Judge Marvin, was he not.—A. I do not recollect. 

Q. Was he not in court, and did he not take part in the controversy on the question of 
letting you take this property, half of it without stipulation and half of it on stipulation.— 
A. Yes, he was present then. 

Q. Do you recollect Mr. St. Paul stating in open court that the amount in the bank was 
less by $I00,0UU than the sums for which the cargoes were sold.—A. I recollect Mr. St. 
Paul making a very extravagant statement. I cannot undertake to specify the exact figures 
named. I know that he made a very large statement of what were the proceeds of the sale. 

Q. My question was whether Mr. St. Paul did not state that the amount deposited in the 
bank was less by $100,000 than the sum for which the cargoes were sold.—A. Mr. St. Paul 
stated that the sales were larger than the amount deposited in the bank, but the exact amount 
larger I do not recollect. 

Q. It was very large, was it not.—A. Yes. 

Q. Up to the time of that statement of Mr. St. Paul in court, the only stipulation that the 
court had for all that property was the bond for $50,000.—A. The only stipulation in the 
case was a bond for $5o,000. 

Q. Up to that time that was the only bond in the case.—A. That is what I stated, but I 
do not admit the meaning of the stipulation, or its effect, to be such as you surmise in your 
inquiries. 

Q. Mr. St Paul, one proctor, and Judge Jones, and Percy Walker, and E. H. Grandin, 
the present United States district attorney, all opposed the application which Judge Marvin 
and you were making.—A. Yes, sir. 

Q. The judge delivered an opinion on the occasion in denying your motion. You say he 
very peremptorily denied it. Did he merely say “motion denied,” or did he give any rea 
son fur his opinion.—A. You pronounced a judgment at the time—immediately after. 

Q. And in what language? Did I give any reasons for the judgments.—A. You assigned 
some reasons. 


105 


I now read, and state whether they were not the exact reasons: 

I lie motion made by Judge Maivin, based upon these petitions, is certainly an unusual 
one. M\ convictions aie that it is not warranted by any precedent to be found in the 
records of courts of maritime and admiralty jurisdiction. If I am correct in this it becomes 
ot importance that I do not create a precedent which might be quoted a bad exam¬ 
ple. I am sure that nothing like this can be found in the adjudication of Judo- e Marvin, 
and although the motion is made by him, and although I have great diffidence indissenting 
from the views ot so experienced an admiralty judge, my opinion in respect of it is not 
embarrassed by the slightest doubt. This is the ordinary case of harm to a vessel and her 
cargo, and the interposition of salvage services. The Gallatin, while lying in the Mobile 
bay, and with a full cargo of cotton on board, was struck by lightning and the ship and 
cargo thereby set on lire. The Talia, with cotton on board of her also, was, as is alleged, 
fired by one ot her crew. The salvage service applies to both the vessels and their cargoes. 
The judicial interposition of this court in the matter was had by the filing of the libel in the 
case of YV iiliam Lee and others against the Gallatin. A day or so afterwards the proctor 
for the libellant and the proctor for the claimants united in a request that the vessel and 
cargo should be stipulated lor, and agreed in writing that the stipulators should not be 
required to give a bond exceeding $50,U00. Upon this action of the proctors, and supposing 
that they represented all the interests, an order was made upon the marshal for the delivery 
ot the property to the claimants, who took possession of it and sold it, or the most of it, by 
their own agents. The court did not and could not know, at the time the stipulation was 
approved, that the value ot the property was so gieatly in excess of the sum at which the 
liability ot the sureties was fixed. It was matter of public and newspaper notoriety that the 
sales ot the cotton produced a fund of several hundred thousand dollars, but the attention 
of this court was not'officially called to the subject until the filing of the libel in the case of 
James Coyle and others. The libel of Coyle sets out these facts with circumstance and detail, 
and prayed that the Bank of Mobile, in which it was alleged the moneys arising from the sale 
of the property were on deposit to individual credit, should be restrained from paying out any 
part ot them except upon the order of the court. On this the bank was accordingly restrained. 
The libellant, Coyle, then asked for an order requii ing the bank to bring into court a statement 
of the moneys it had upon deposit as proceeds of the sales of the cargoes of these two vessels. 
The next day the bank by its counsel furnished the desired information. From the statement 
of the bank it appeared that there was on deposit, on the account of whom it might concern, 
as proceeds of the Gallatin cargo, $230,048 72; and as proceeds of the Talia’s cargo, 
$8^,556 OJ ; making a total of $338,605 35. On this showing the court directed an order to be 
entered directing the bank to transfer forthwith these funds from the account to the credit 
ot which they were placed on its books into this registry of this court The claimants’ coun¬ 
sel (Mr. Hamilton) opposed this, and argued that the restraining order was sufficieut to 
give the court full control of the fund. 1 was of a different opinion then, and have not 
since changed my mind. The court supposed that the return of the bank showed the true 
amount of the proceeds of the sales of the property, and nothing to the contrary of this 
appears in the petitions filed by the claimants this morning. The first intimation that is made 
to the court on the subject is rhe statement of Mr. St. Paul in opposing the present motion. 
It certainly is an important fact in its bearings on this motion and the rights of salvors. 
Unexplained and standing alone it is a circumstance of suspicion. The lien of the salvor 
attaches to all of the property upon which service was performed, and here is property of 
the value of nearly $ll/0,UU0 appropriated by the claimants and removed beyond the juris¬ 
diction of court, without any stipulation in respect of it. It is not necessary to impute any 
intention of wrong-doing to "the parties concerned ; indeed the court is prepared to believe the 
absence of criminality in the premises; but the removal of this part of the property was, 
under the circumstances, an unauthorized proceeding. The court is now asked to allow the 
claimants to withdraw from the tegistry the whole of these funds, less fifteen per cent, of 
them, (which they say the salvors may have,) upon their giving stipulation fora part—say 
$75,(JUU—the remainder they ask for without being obliged to give stipulation for it. Before 
proceeding to discuss the merits of the petitions, I have a word to say on the general sub¬ 
ject of stipulations in admiralty. The learned counsel for the claimants (Judge Marvin) 
has contended that it is the right of a claimant to have possession of the property upon 
entering into stipulation, according to the JUth of the ‘supreme court admiralty rules,’ 
and that the discretion of the court in the matter is confined to fixing the amount of the 
bond and determining the sufficiency of the sureties. I do not concur in this view of the 
rule. From my first accession to the bench until now, I have held, and must, for anything 
I have heard to the contrary, to-day continue to hold that it rests in the sound, legal discre¬ 
tion of the court to allow the property to be removed from its own custody or to 
retain it. It must not be forgotten that salvors, and all that relates to their claims 
and interests, are peculiarly the care of courts of admiralty, and that the court 
is the guardian of all that is saved from wreck for the conservation ot the 
rights of all concerned. Besides, no stipulation, by whomsoever guaranteed, would, 
by this court, be accounted equal to the security afforded claimants and salvors by the 
registry of the court. This is true in the best of times and all over therountry. It is 
especially true now, and of this portion ot the country, with universal business and mon- 


106 


etary depression forcing to almost universal bankruptcy, and when the rich of to-day not 
only may be, but is likely to be, the poor of to-morrow. If, then, these petitions, and the 
motion made upon them, were free from the peculiarities of this case, I would not feel at 
liberty to regard them favorably. What am I asked to do? I am aked, m advance of a 
single word of proof, before a syllable of evidence has been taken, while I have yet no 
means of knowing who the claimants are or whether they are all represented, and while 
other libels are being tiled by other salvors, to judicially determine that the salvage service 
is worth at least 15 per cent., and to give pro tanto an anticipated decree. The statement of 
the proposition carries with it what must be its own refutation. Non constat whether the 
salvage is worth five per cent.; non constat whether it is not worth 75 per cent. The trite 
maxim, “Haste makes waste,” is not wholly inapplicable here. To a bar as familiar as 
this bar is with maritime law, and certainly to counsel so experienced in admiralty juris¬ 
prudence as Judge Marvin, who is himself authority in the maritime courts of the world, it 
is not necessary that I should discuss the principles upon which salvage services depeud. 
Salvage—and that is involved in it—is comprised in two words, compensation and induce¬ 
ment; compensation for services actually performed, aud reward by way of inducement to 
undertake future peril or labor in the work of saving. How can this or any court decide, 
before it hears the evidence, at what sum it shall fix compensation, or how assign to induce¬ 
ment its stimulus? In this case the fund, or the major part of it, is now in the registry of 
the court—its legal depository. It ought not to be removed, except into the possession of 
those who shall be entitled to receive it. This cannot be known in advance of a legal 
adjudication, aud such an adjudication must have the law and the testimony for its founda¬ 
tion and authority. Hitherto the property libelled has had no locus in quo; first in court, 
and then out of court; again in court, and now again sought to betaken out of court; a 
kind of shuttlecock, driven hither and thither by battledoors in the hands of ingenious coun¬ 
sel, petitioning claimants, and libelling salvors, as their zeal or wishes or wants dictated. 
I have no doubt—nothing that approaches to doubt—as to my duty in the premises. The 
motion of the claimants, Delano and Wheeler & Co., must be, and is, denied.” Can you 
state whether that was the substance of the opinion delivered by the court.—A. In sub¬ 
stance it is the same. I think that that must have been written out afterwards. That is 
much longer than the opinion that you delivered. 

Q. The fact is, is it not, that some $90,000 of that property, which was sold under the 
sale by the stipulators, was sent to Europe.—A. No, sir ; I do not understand that. 

Q. How much of it was sent.—A. Quite a large quautity of the cotton that was dam¬ 
aged to a very trifling degree was sent forward. 

Q. The vessels in those cases were both stipulated for.—A. Yes, sir; they were both 
stipulated for. 

Q. The court did not require the marshal to sell that property.—A. No, sir. 

Q You said yesterday that you did not see any difficulty in those cases being decided 
before I left Mobile.—A. I think I said so. 

Q. Do you not know that at the time Judge Busteed left Mobile, in May, 1866, the moni¬ 
tions in these cases were not yet returnable.—A. They were not returnable; but 1 offered to 
appeal for them. 

Q That is, you, being proctor for the claimants, offered to appeal for the salvors.—A. No, 
sir; not tor the salvors. I offered in behalf of the claimants, that is, the defendants, to come 
into court in anticipation of the time when the monitions were returnable. 

Q. But the fact is that the monitions were not returnable when I left Mobile.—A. I do not 
know when you left Mobile. • 

By Mr. Eldridge: 

Q. Do you say that the persons summoned or notified were represented by you.—A. I rep¬ 
resented the claimants. I represented the property and all interested therein. 

Q. And you offered to appear tor these parties.—A. Yes ; I offered to appear in anticipation 
of the return day for all the claimants. 

By Judge Busteed : 

Q. Did you make a formal offer to me in court.—A. Yes, sir. 

Q. Is it not a fact that, at the time this opinion was pronounced, on that very day three 
new libels had been filed against that property.—A. I cannot answer. 

Q. Were you counsel for all the claimants.—A. Yes, sir. 

Q. Was the Great Western Insurance Company a claimant.—A. The Great Western Insur¬ 
ance Company is not a technical claimant now. 

Q. Was it a claimant.—A. In admiralty language, no. 

Q. In fact.—A. It is an underwriter. 

Q. In fact, was the Great Western Insurance Company of New York city a claimant for 
any part of this property when you made the offer to appear for all the claimants.—A. The 
Great Western Insurance Company is an underwriter on this cotton, and therefore has an 
interest in the cotton—a certain portion of it; but it could not come forward and say “ I am 
the owner of this bale, or that bale, or any other bale.” The claim was interposed by the 
master of the ship, in the case of the Albert Gallatin, and by the consignees in the case of the 
Talia, as bailees, representing the interest of all persons concerned. 


107 




By Mr. Wilson: 

Q. Do you mean to bo understood as saying that the underwriters bad no right to appear. 

A. W hat I mean to say is, that when an underwriter accepts an abandonment of property 
he has a right to go and file a claim in his own name before the court. 

By Mr. Eldridge: 

Q. He had not accepted an abandonment of property in this case.—A I was not advised 
that the Great Western Insurance Company had accepted an abandonment. 

By Judge Busteed : 

Q. Do you know the fact that it did not.—A. I do not know; but if it had not accepted 
an abandonment it could not be a claimant. 

Q Was that offer to appear for all the claimants intended to embrace any interest repre¬ 
sented by the Great Western Insurance Company of New York.—A. Yes, sir. 

Q. Are you acquainted with Richard Lathers, president of that company.—A. I have a 
slight personal acquaintance with him. 

Q. Have you seen him write.—A. No, sir. 

Q. Have you received letters from him.—A. I do not think I have. 

Q. Look at that paper, now shown you, and say if you think it is in his handwriting.— 
A. I think I cannot answer to Mr. Lather’s handwriting. 

Q. Wh at amount of this property in value is represented by the Great Western Insurance 
Company of New York.—A. I do not know. 

Q. Do you know that it is an amount nearly equal to $05,000.—A. I think I have heard 
something like that sum specified. 

Q. You stated yesterday that an outside salvage would be 33^ per cent., in your judgment, 
in these cases — A. Yes, sir. 

Q. Do you not know that in these very cases, while yet the property was in the hands of 
the stipulators to the value of nearly $400,000, with a bond for $50,000, an attempt was 
made to arbitrate it without the intervention of the court. — A. I know that, so far as a por¬ 
tion of the cotton of the bark Talia was concerned, there ivas an arbitration. 

Q Do you not know that an offer of 50 per cent, was made to the salvors.—A. I was 
informed that the arbitrators in that case had awarded 50 per cent. 

Q. Who were the abitrators.—A. I speak only from hearsay. I think they were Daniel 
McNeil and one of the Wylies. I do not recollect the third one. 

Q. Was it not Secor.—A. I do not think I heard his name in connection with it. 

Q. Do you know whether the award of the arbitrators was refused by the salvors.—A. 
It was refused by the claimants, not by the salvors. 

Q Do you know whether any of the salvors refused it.—A. I do not know that they ever 
refused it. I know that the claimants refused to accept any such award. 

Q. Which claimants.— A. Daniel Wheeler & Co., under the instructions of the Great 
Western Insurance Company. 

Q. And were not the instructions of the Great Western Insurance Company that the 
property must be taken into court, and that they would nut be satisfied with anything else 
than the decision of the court —A. I understood that the instructions were to take the 
opinion of the cour 1 ;, unless these parties would accept the terms which Judge Marvin and 
myself offered to them. 

Q. When you said that you did not see any difficulty in Judge Busteed deciding these 
cases in May, did you not know that the regular spring term of United States court for the 
middle district of Alabama commenced on the 4th Monday of May.—A. The law fixes that 
day. I do not know when it is held. 

Q. It is held on the 4th Monday of May, and Judge Marvin was introduced to me by you 
on the 21st of May.—A. You fixed it on the 2Jst. I do not recollect the date; it was much 
about that time. 

Q. What was the condition of Judge Busteed’s health then.—A. It was not as strong as 
I should have liked to have seen it. 

Q. Was it not far from being strong.—A. You were sitting in court from day to day. I 
do not think you were in a condition to undergo very great physical labor. 

Q. Do you know whether I went to Montgomery and held a district court in that con¬ 
dition.—A. Of my own knowledge I know nothing about it; but I know that you left 
Mobile to go to Montgomery, and your statement when you adjourned the court in Mobile 
was, that you would be back on the 15th of June and try these cases. 

Q. Did I state in that connection for what purpose I was leaving Mobile.—A. It seems 
to me there was a habeas corpus case, or something of that kind in Montgomery, that you 
said you were called upon to examine. 

Q. Do you recollect my stating to the bar my intention to go to Montgomery before Mon¬ 
day, something in these words: “that I was disposed to refer all the libels in these two 
cases to a commissioner to take and report the evidence to me ;” but that Judge Marvin made 
earnest objections to my doing so, aud that I yielded to him. I further stated “ that I will 
adjourn the district court to a day certain, aud, if my health wili permit, will return to 
Mobile and try these cases.” Do you recollect such a notice as that.—A. No, sir; Ido 
not think I was in court at the time. 


108 


• 

Q. The difference between you and myself occurred on the 19th of April, 1866.—A. Yes. 

Q. From that time forward you were in the court practicing as a lawyer.—A. I was in the 
court occasionally; I did not go in any more than I could help for some time. 

Q. How long did that state of personal relations continue.—A. That state of personal 
non-intercourse continued until a few days before you were shot. 

Q. Until the 23d of December, 1867.—A. It might have been about that time, I suppose. 

Q. Intermediately, the 19tli of April, 1866, and the 23d of December, 1867, had you 
expressed a desire to have our personal relations of friendliness re-established.—A. I had 
expressed the great unpleasantness of attending your court at the time, when my personal rela¬ 
tions with you were such that I could not address you, and you could not address me. I 
made no concealment of that. I never desired to live on bad terms with any person. 

Q. To whom did you express that desire.—A. I made the remark to Judge Campbell and 
to sundry persons. 

Q. Did you to Mayor Withers, of Mobile.—A. I do not remember that I expressed to him 
any particular desire to have our relations restored. 

Q. On the 23d of December, 1867, did you come to my private rooms with Mr. Withers.— 
A. I did ; I think that was the date. 

Q. Judge John A. Campbell was in the room when you came there.—A. No, sir ; he came 
in afterwards. 

Q. At that meeting were personal relations completely re-established between you and 
me.—A. I think so. 

Q. You iutended them to be on your part.—A. Certainly, sir. 

Q. Fully, sincerely, and truthfully.—A. Certainly. There was a speech made by you 
and a speech made by me, and finally we shook hands. 

Q. Do you recollect the day I left Mobile with my family, after I was shot.—A. I do not 
know when that was. 

Q. You recollect that I was carried in a chair out of the carriage on board of the boat by 
by two men.—A. No, sir; I was not there when you were carried on board. 

Q. It was a very rainy day, was it not.—A. Yes, sir; it was a rainy day. 

Q. Were you on board that day to see me off, and to say a kind word to me.—A. I went 
to the boat to bid you good bye. I was coming from the boat when your carriage entered 
the wharf, and I stopped a moment to shake bauds with you. 

Q. And, so far as you were concerned, you knew of nothing that would make you desire 
an interruption of our peisonal relations.—A. I desire to continue upon friendly personal 
relations with you. 

By Mr. Smith : 

Q. What quantity of cotton had been libelled when you gave a stipulation for $50,000.— 
A. 1,600 bales. 

Q A libel identifies the cotton.—A. It ought to. At the time the first libel was filed 1,600 
bales of cotton had been brought to the city; the libel was very imperfect and defective, 
because it did not allege the cotton specifically and fully, but simply stated that 1,600 bales 
of cotton were brought to the city; it was a wandering sort of a libel filed by Major St. 
Paul; a cloudy and indefinite affair, making extravagant demands. I filed claims for all 
the cotton brought to the city. 

Q. How was the $50,000 bond agreed upon.—A. It was agreed upon by Major St. Paul 
and myself; he agreed to accept for his salvor libellants a stipulation bond to answer a 
decree to the extent of $50,000. 

By Mr. Woodbiudge : 

Q. Did you and he at the time represent the whole cotton.—A. Mr. St. Paul filed the 
libel; I was retained by the bailees of the cotton to appear and defend any and all libel suits 
that might be brought against the cotton and vessels ; I lepresented the whole of the one 
side of the cases ; if they had brought 500 bales of cotton into the port at one time I should 
have filed a claim for the 500; if they had brought 2,500 bales I should have filed a claim 
for the 2,500, and would have claimed all the property brought. 

Q. Did the $50,000 bond settle the question between you and Major St. Paul.—A. It did 
as to the libel he had filed. 

Q. When these other libels were filed did I understand you to say that the cotton itself 
had been sold by the parties.—A. Yes; but it was sold subsequently to the filing of the libel 
by St. Paul. 

Q. Was that the money that was deposited in the bank.—A. Yes, sir; the proceeds of 
the sale. 

Q. Outside of the $50,000, the proposition of which you spoke yesterday to take out a 
certain amount of money was in reference to other salvors.—A. It applied to all the libels, 
for the whole fund had already been seized. 

Q. The bond would represent Major St. Paul.—A. Yes ; but the bond was already can¬ 
celled, for the judge had already seized the whole fund. 

By Judge Busteed : 

Q. I gave you up the bond when the court transferred the fund to its register.—A. Yes. 


109 


By Mr. Smith : 

Q. Who cancelled the bond.—A. It was delivered to me, and I probably cancelled it. 

Q- 1 llen a11 t,ie libellants were represented in court, and the thing that represented the cot¬ 
ton was the money in the bank.—A. Yes. 

Q. How many libels were afterwards filed.—A. I do not think there was any of them filed 
afterwards. 

By Judge Busteed . 

Q. After when.—A. After you refused to give us the proceeds. 

By Mr. Wilson : 

Q. W as the cancellation of this bond before or after the delivery of the opinion read by 
Judge Busteed.—A. It was before. 

By Mr. Smith : 

Q. W hen the bond was cancelled how nearly did the money in bank approximate to the 
proceeds ot the whole sale of the cotton.—A. I think it covered all the sales except the 
expenses of the sales. 

Q. And then how much of the cotton saved had been sent off.—A. Several hundred bales 
had been sent forward by other vessels. 

Q. What was the condition of that cotton. —A. That cotton was either not damaged at all 
or so little damaged that very little was necessary to put it in a condition for shipment; I 
cannot recollect how many bales there were sent forward. 

Q. as there any claim by any libellant, or by all of them together, that covered the 
whole ot the $339,000.—A. No, sir: of course they would not claim the whole amount of 
the property saved ; the claimants were entitled to the whole of it, less what might be taken 
out to satisfy the salvors. 

By Mr. Churchill : 

Q. Did the claims of the libellants cover all the cotton that had been saved.—A. Yes, sir; 
they claimed that their services extended to all the cotton that had been saved. 

By Mr. Smith : 

Q. But did their claims cover all the money in bank.—A. No, sir. 

Q. Was there not a remnant that would necessarily go to your clients.—A. Certainly. 

Q. Was it that which you were for assuring and getting out of the bank.—A. Yes, sir; 
that is what I wanted. 

Q. Aud that is what you were refused.—A. Yes. 

By Mr. Eldridge : 

Q. That is what the court refused at the time of the delivery of the opinion.—A. Yes, sir. 

By Mr. Wilson : 

Q. Was the amount that your clients would be entitled to ascertained at that time.—A. 
Ot course, tor my clients were entitled to the whole of it, less whatever salvage would have 
to be subtracted. 

Q That had not been determined.—A. Of course, it could not be determined until after 
the decree was rendered. My theory was this: “that the simple saving of property does 
not entitle the salvor to the whole of it; that the property belongs to the original owner, and 
that all that the salvor is entitled to in any litigation is, either to have the property itself 
retained or such security given as will be able to respond to him in the amount of the decree 
that he may obtain,” aud. supposing that by no possibility or shadow of possibility, could 
an amount equal to 50 per cent, of that value be decreed in favor of the salvors, we asked 
that the court allow us to take half of the property as our own without stipulation, and for 
the other half we proposed to stipulate. 

Q. Did not that leave out of view the interest of the underwriters.—A. No, sir ; because, 
when a claim is tiled by tiie master of a ship, he claims for all interests, aud D, by the very 
fact of a peril occurring, the agent of all concerned and the litigation is conducted in his 
name. 

Q. I had understood that the underwriters had set up a claim for the protection of their 
own interest.—A. No, sir; Judge Busteed has spoken of letters that he received from the 
underwriters ; but I appeared for the bailer of this property and therefore necessarily appeared 
for all the interests that belonged to the property, whether they consisted in ownership or in 
a lieu upon the ship, or in a right to the property after indemnification, as in the case of 
underwriters. 

By Mr. Woodbridge: 

Q. Is not the settlement of the stipulation and the delivery of the libelled property a mat¬ 
ter within the discretion of the court; is it a matter of absolute right, or is it a matter rest¬ 
ing in the sound discretion of the court.—A. I consider it a matter ot absolute right for the 
owner of the property to have possession of the property, provided he furnish to the salvor 
a security sufficient to answer his demand. 

Q. And the sufficiency of that security is to be passed upon by the court.—A. Yes. 


110 


By Mr. CHURCHILL: 

Q. At the time this application was made and this opinion given by Judge Busteed. were 
all the libellants assenting to your proposition.—A. No, sir ; the libellants objected. 

Q. And your proposition, that they might take a certain sum out of court, was coupled 
with the condition that, if they were allowed to do so, you should be allowed also to take a 
certain sum out of court.—A. No, sir ; we came and stated to the court that we acknowledged 
that salvage services had been rendered, and therefore that the salvors were entitled to some 
compensation; that for their convenience we were perfectly willing to allow them 15 per 
cent, in the one case and 20 per cent, in the other case, stipulating that the amount received 
by them would not bind them in any form if the court, upon examination, should think them 
entitled to any more than that sum. In other words, we said: “As to that 15 per cent, and 
that 26 per cent., we will not litigate; we acknowledge your claim to that extent. Any 
claim more than that we will litigate; but we think we have a right to half the property, 
and that will still leave in court 36 per cent, in the one case and 35 per cent, in the other 
case. And as to that 30 per cent, and 35 per cent., we ask that we may be at liberty to take 
it out when we give a sufficient stipulation.” 

By Mr. Smith : 

Q. Did you tender security for the amount to be taken out.—A. We offered to give secu¬ 
rity satisfactory to the court for the amount to be taken out. 

Q. Instead of the cotton being there, the proceeds of it were in bank, and the ordinary 
admiralty stipulated for the proceeds.—A. Yes; there were two sorts of stipulations in 
admiralty; sometimes a stipulation is given for the thing itself, and sometimes a stipula¬ 
tion is given to respond to the decree that may be made on the libel. If a libel is filed upon 
a piece of property, and the claimants come and take it out upon stipulation, there is noth¬ 
ing to forbid a second libel being filed on the same property, on its being seized by the 
marshal and a new stipulation being given. 

Q. Have you had an interview with Mr. Lathers, president of the Great Western Insu¬ 
rance Company.—A. I had an interview with Mr. Lathers and was requested by him to 
represent the interests of that company. 

By Judge Busteed : 

Q. When.—A. Within the last 10 days. 

By Mr. Smith : 

Q. Did I understand you to say that you offered to appear at once, before the monitions 
were returnable.—A. l r es, sir ; in order to expedite matters I offered to appear and fix a day 
for the trial of the cases, before the return day of the monitions had arrived. 

Q. The underwriters, of course, make good the loss whatever it is.—A. Certainly, if 
within their policy. 

Q. If the owners of the ship had obtained any amount of money through their agents, 
could they fall back upon the underwriters for the amount received.—A. Of course not ; 
that would be to the credit of the underwriters. 

Q. Would it not be then utterly impossible for the insurers to be injured by your proposi¬ 
tion.—A. Utterly impossible. 

Q. Whatever sum was paid to the owners would so far discharge the underwriters.—A. 
Certainl}’, sir; the underwriter is simply a conditional owner. 

Q. Then how could the underwriter have any interest in the cotton.—A. He could not 
have any interest until the abandonment had been made. 

i Q. State whether you had, in point, of fact, anything to do with, or any control over the 
commercial business of dealing with the cotton out of court.—A. Nothing in the world ; I 
am a counsellor at law, and attend to professional business on the part of other people as 
attorney at law; but I do not know anything of these proceedings out of doors ; it did not 
fall within my province at all. * 

Q. What are the whole expenses that accrued upon 454 bales of cotton, by reason of the 
dealings of the court with it.—A. The sale of the cotton produced $47,670. The marshal 
returned to the court a cash balance of $42,004, making the costs $5,666. That is the claim 
that the marshal made; that claim was somewhat reduced. The auctioneer’s commission 
was reduced from hve per cent, to three per cent, upon the taxation of costs, reducing the 
amount from $2,383 to $1,430, and one or two other items were struck out. 

Q. Then $1,430 were allowed the marshal for selling as auctioneer.—A. Yes, sir. 

Q. Besides his commission as marshal.—A. Yes, sir. 

By Mr. Eldridge : 

Q. Who acted as marshal.—A. John Hardy was the marshal. Jacob Wilson acted as 
auctioneer. 

Q. He \yas deputy marshal, was he not.—A. Yes. He served subpoenas, writs, &c. 
The cotton that was dealt with outside of taese 454 bales amounted to 400 bales. 

Q. Wlmt was the cost of selling these 499 bales.—A. The note handed me by Judge Bus¬ 
teed is in my handwriting,_ and shows that the charges of the 499 bales amounted to 
$4,985 76. My recollection is that this includes every expense attending the matter. There 
was a great variety of expenses—insurance, storage, &c. ’ 


Ill 


Q. Were any of these items included in the marshal’s charges.—A. I think not. 

Q* ^ hat was the final amount allowed —A. Ihe total amount of charges allowed was 
$16,414 63. These are the charges allowed in the court proceedings. 

By Mr. Smith: 

Q. Did the expenses appertaining to that which was bonded enter into that sum of 
$10,414 63.—A. No, sir; this paper shown to me was prepared with very great care, and I 
believe it to be accurate. The whole expense attending the Natchez litigation was $10,414 63. 
This was the expense that came under the eye of the court, and which we were required to 
pay. 

By Judge Busteed: 

Q. And that included Secor’s charges.—A. No, sir; I think not. That $10,414 63 is the 
amount of charges that we were compelled to pay to the officers of the court on the litiga¬ 
tion attending the whole 960 bales. 

By Mr. Smith : 

Q. Did that cover or appertain to the commercial expenses attending the cotton after it 
had been taken out of court.—A. No, sir; these $10,414 63 were the amount of money that 
these claimants had to pay into the court out of the ninety-odd thousand dollars, the pro¬ 
ceeds of those 900 bales of cotton. Those charges of $1.9^5 70 by Woodruff & Parker were 
disallowed by the court when the statement came to he made up for distribution. While I 
cannot certainly recollect writing the letter produced to me by Judge Busteed, I can in a 
.general way recollect seeking to give information to the court as to what the expenses were, 
in order that they might be deducted, so as to find out what the net balance was that was 
to be distributed. 

Q. Is salvage sometimes allowed upon the gross and sometimes upon the net.—A. Yes, 
sir; it sometimes varies. 

Q. If this cotton had been stipulated for, as you offered, what would have been the neces¬ 
sity for incurring any other warehouse charges by moving it to a different warehouse.—A. 
Of course there would have been nothing of the sort. 

Q. Warehouse charges em by the month in Mobile, do they not. — A. Yes. 

Q. And if goods are taken out after they are in only one day they have to pay the charge 
for the month.—A. I think so. 

Q. And if they are put in another warehouse they pay another monthly charge.—A. I 
think so. 

Q. When the marshal removed the cotton to another warehouse, incurring an expense of 
$2,UU0, that was the penalty for your not getting the stipulation.—A. The expense was, in 
my judgment, very largely increased by that course of proceeding. 

By Judge Busteed : 

Q. Was not the libel that was filed against the cotton of the Talia and the Albert Gallatin, 
upon which the $5U,(JU0 bond was given, filed against the whole of the cotton and the vessels 
by Mr. St. Paul.—A. I said before, the libel was an exceedingly cloudy, indistinct affair. 

Q. But that was the fact of record.—A. Yes ; he sought to claim everything. 

C*». He did claim everything, did he not.—A. Yes, upon the face of the libel; but there 
had been only 1,600 bales of cotton brought up at the time. 

Q. Do you know that of your own knowledge.—A. I have not seen the cotton, but I 
think the affidavits stated it. 

Q. In the argument of Judge Marvin, did he not state that he did not know whether the 
claimants could give security or not.—A. The petition was, that we might be allowed to 
take out the 30 and the 35 per cent, upon our giving stipulation with good and sufficient 
security, to be judged of by the court, with the statement by Judge Marvin that he did not 
know whether we would ask lor it or whether we could furnish the security. We asked for 
a conditional order. 

Q. Did not St. Paul take the objection that the fund itself being in court was the subject 
of an admiralty stipulation; but vvliiie the property was the subject of admiralty stipulation, 
inasmuch as it had been sold and converted into money and was in court, the fund was not 
the subject of admiralty stipulation.—A. It is very likely that he did; I do not recollect. 

Q. In your judgment as a lawyer, was the fund, under these circumstances, the subject of 
an admiralty stipulation.— \. In my judgment as a lawyer, yes. 

Q. Was there any admission by any or all of the libellants that you and Judge Marvin 
represented all the claimants of this property.—A. I do not know whether there was or not. 

Q. You do not know of theie being any such admission.—A. I do njt recollect. 

By Mr. Churchill : 

Q. Was there any claim that you did not represent it all.—A. No, sir; nobody could 
make such a claim; we had filed sworn claims. 

By Judge Busteed : 

Q. Do you not know that Judge Busteed, as early as the first admiralty case in 1866, the 
case of the Roger A. Hearn, designated the Bank of Mobile as the depository of the couit.— 
A. 1 do not know it. 


112 

Q. Were not the checks paid to you in that case by the Bank of Mobile.—A. I do not 
know. 

Q. And you cannot state now on which bank the Roger A. Hearn checks were drawn.— 
A. I do not recollect. 

Q. Do you not believe that they were drawn on the Bank of Mobile.—A. If you say so, 
I would believe it; my impression had been that the First National Bank was the deposi¬ 
tory of the court. 

Q. Do you know Mr. Charles Walsh, president of the Bank of Mobile.—A. Yes. 

Q. What is his personal standing in the city of Mobile.—A. Very good. 

Q. How long has he been a resident of Mobile.—A. For a long time. 

Q. He is largely engaged as a merchant there.—A. Yes; he is at the head of one of the 
largest houses of Alabama. 

Q. And he is himself a gentleman of distinguished personal character.—A. I never heard 
anything against Mr. Walsh. 

Q. What is the business character of the Bank of Mobile.—A. Very good. 

Q. Have you anything approaching to a doubt that the fund belonging to those cases is 
in the least danger in the Bank of Mobile.—A. Of course not; I believe that the Bank of 
Mobile is perfectly solvent. 

Q. You have no anxiety growing out of any danger to the fund so long as the Bank of 
Mobile is the depository.—A. Personally I have not. 

Q. Do you not know that, by the rules of the Supreme Court applicable to admiralty 
funds, the court is obliged to deposit the money as it comes into the court, and that it 
cannot be drawn out, except upon the signature of the judge, countersigned by the clerk.— 
A. The best answer is the rule itself; 1 do not know. The rule of Judge Jones was, that 
it should be deposited to the credit of the court, to be drawn out on the check of the clerk, 
countersigned by the judge. 

By Mr. Smith : 

Q. The safety of the fund depends upon the good faith of the depositor, does it not.—A. 
Certainly". 

By Judge Busteed: 

Q. What you mean is, that if Judge Busteed and Mr. Trimble were to unite in a check, 
that money could be drawn out of. the Bank of Mobile —A. I suppose so. 

Q. When were the answgrs to the libels in the cases of the Albert Gallatin and the Tailia 
filed.—A. The answer in the case of the Albert Gallatin was sworn to by Captain Delons in 
July, or about the 1 st of August last, The answer in the case of the Tailia was not sworn 
to until a few weeks ago. They were both formally filed, I think, about the 1st of 
December. 

By Mr. Smith : 

Q. You stated that y r ou offered, before the monitions were returnable, to appear and file 
answers and go to trial immediately.—A. I did. 


Washington, D. C., January I I, 1869. 

Alphonse Hurtel sworn and examined. 

By Mr. Smith: 

Question. Did you have occasion to prove any claims in the bankrupt court of Mobile.— 
Answer. I was concerned in the approval of two claims, one of which 1 was directly interested 
In, and the other of which I was interested in as an attorney ; one was the claim of Gage & 
Hurtel, and the other the claim of C. P. Gage, now deceased. 

Q. Before whom did you prove them.—A. Before Lawrence Worrall, the register in bank¬ 
ruptcy 7 in Mobile. 

Q. In what form was the proof made.—A. The one in which I was interested, that of 
Gage & Huitel, was proved by my own oath; in the other case, Mr. Gage being too unwell 
to come up staiis to the register’s office in the custom-house, Air. Worrall was kind enough 
to come down stairs into the stamp-room, and the claim was proved by Mr. Gage’s oath. 

Q. Mr. Gage was a sick man, and died from the sickness then on him.—A. Yes. 

Q. Iii what form was the claim proven.—A. We were furnished by Mr. Davis, of the firm 
°* t Davis, Hall & Co., with printed blanks ; those blanks were filled out and brought to Mr. 
Worrall; they were the common printed blanks used for that purpose. 

Q. How much did Mr. Worrall chaigeyoufor each affidavit.—A. When I went before 
him to prove the claims ot Gage & Hurtel I asked him what the fee was, and he said $5, 
which 1 paid him; when lie came down stairs to prove the claim of Air. Gage, without ask¬ 
ing any questions I paid him $5, supposing that was the regular fee. 

Q. V ho is the man who acts as assiguee in bankruptcy.—A. Mr. Bailey appears to be, 
from the advertisements which I see of claims in bankruptcy; I do not know what his first 
name is; we had several claims which we did not prove in which he was the assignee. 

Q- Do you know from public advertisement that he is the assignee in almost every case in 
bankruptcy. A. I he advertisements have, so far as I recollect them, used his name. 


113 


Q. Who is Mr. Bailey.—A. I have no personal acquaintance with him. 

Q. Is he a man known in that community.—A. He never was known to me ; I do not 
know how long he has been in Mobile ; I have lived there myself since 1836, and am gen¬ 
erally acquainted in that city. 

Q. What business have you followed—A. I was practicing law before the war; since 
then I have been clerking, and am associated personally with Mr. Gage. 

Q. Do you know of any property that Mr. Bailey owns there.—A. I have no personal 
acquaintance with him except as assignee, nor do I know what his means are. 

Q What transpired in reference to the appointment of assignee in respect to Davis, Hall 
& Go.—A. The creditors of Davis, Hall & Co., prior to their first meeting under the law, 
as notified by the register in bankruptcy, held a special meeting in a private office, and there 
entered into a general contract or agreement to endeavor to withdraw the assets or effects 
without being brought into the court of bankruptcy, and if possible to administer upon the 
estate themselves in order to save time and expense. Mr. Davis, who appeared to have the 
management of the firm, was there representing the firm. The understanding was that he 
was to be discharged as fully as if the whole estate had gone through the court of bank¬ 
ruptcy. The arrangement having been assented to by all parties present, the creditors met 
in the register’s office, wdiere the petition or the contract agreed upon was presented ; the 
proposition was to place the estate in the hands of a committee of creditors, and to withdraw 
it from the court; the only one of the creditors not present or represented in this preliminary 
meeting, to my knowledge, was a Mr. Seymour, of New York, whose claim had not then 
been filed; he was not present, either himself or by attorney. I am not sure whether the 
person agreed upon by the creditors as assignee was chosen at that time or in a subsequent 
meeting, but the person selected by the creditor was Captain Jesse Cox. 

Q. What was the character of this bankrupt estate.—A. A large proportion of the estates 
consisted in a third interest in a steam propeller line that run between Mobile and New Or¬ 
leans ; we considered Captain Cox peculiarly fitted for the position, having been for a long 
time the captain of a boat and being himself a person whose character and position was be¬ 
yond question. Mr. Worrall, upon the presentation of the petition, I think, stated that he 
could not decide it then, but would adjourn the meeting until the next day, which he did 
until the next morning at 10 o’clock, in order, as he said, to ascertain whether such a thing 
could be done under the law; he also said—I am not sure whether at this meeting or on the 
subsequent day—that he desired to consult Judge Busteed on the subject. The next day, when 
the creditors met, Mr. Worrall announced his opinion that the request they made would not 
be granted ; we then presented a petition signed by same creditors asking that Captain Jesse 
Cox should be appointed as assignee in bankruptcy for the creditors; to which Mr. Worrall 
replied that we had forfeited our right of selecting the assignee by not having done it at the 
first meeting in accordance with the law; this produced some surprise among attorneys and 
creditors, inasmuch as the adjournment had been made by Mr. Worrall at his own instance, 
and some expression of surprise was made to him ; he then said that, upon the presentation 
of the petition, he could not decide it then, but would adjourn until the next day ; the credit¬ 
ors at first refused to adjourn unless he would say that the effect of the adjournment would 
not prejudice their rights as creditors as he stated the first adjournment had done; he said 
that the adjournment should have no effect in that court, and adjourned ; the result of the 
second petition was that Captain Jesse Cox was appointed as assignee in bankruptcy. On 
the next meeting of the creditors at the time to which we had adjourned, Mr. Worrall said 
“Mr. Cox would be appointed upon his giving the necessary bond.” I do not recollect 
whether the amount was named and Mr. Cox there gave the bond, or had prepared to give it, 
when he was informed that Mr. Bailey had been appointed by the judge as co-assignee. 
Captain Cox then refused to serve, and Mr. Bailey remained the assignee, and Gen. Pierce, 
the postmaster at Mobile, was appointed in the place of Captain Cox. 

Q. Have you known any session of the bankrupt court ever having been held at Mobile 
by the judge.—A. Judge Busteed admitted that no general session of the bankrupt court 
has been held in that district or the middle district, and stated that he was not aware that 
any bankrupt business had come before his court officially for judicial action. 

Q. Has there ever been any order of distribution made in that court.—A. Not to my 
knowledge; I will say that there has not been. 

Q. What was the value of this steamboat stock surrendered by Davis, Hall & Co.—A. At 
the time it was filed by Mr. Davis it was quoted at $30,000. It was not really so valuable 
at that time, inasmuch as the boats had been seized in New Orleans and held by the attach¬ 
ment of one of the creditors ; that attachment was dissolved by virtue of the commencement 
of proceedings in bankruptcy. The two boats had been detained in New Orleans ; one of 
them, laden with perishable materials, had had her cargo transferred to a schooner which 
sunk, and in that w r ay some $15,000 or $20,000 expenses had been involved, so that the 
value of the stock had become very much reduced. 

Q. Was it a distribution of property that men not connected with steamboat business 
could manage and realize upon.—A. 1 suppose that would depend upon the character of the 
men; still it would have been better to have steamboat men to control it. 

Q. Who acted as disbursing agent of the moneys collected from the wharf owners in the 
case of Leveritch and others against the mayor and common council of Mobile.—A. The 

8 B 


114 


i 


owners had a meeting' at which they appointed a committee to superintend the matter. 
Finding 1 money was necessary for the litigation which they contemplated, 1 was selected as 
secretary and treasurer of that committee, having been connected with Mr. Gage in the 
wharfage business in Mobile. I think between $31,000 and $32,000 was collected on two 
calls made, one of two and the other of two and a half per cent, on the value of the property. 
These calls were made by the committee, of which Messrs. Waring was at the head; the 
first sum paid out by them was a retaining fee to the attorneys, John A. Cambell, Mr. Ham¬ 
ilton, Dargan & Taylor, George N. Steward, and Rufus Andrews. We paid $2,500 to each, 
except Mr. Andrews, and $ 2,000 to him. There were several small sums paid out for court 
records furnished to attorneys, and for copies of the petition. This record was afterwards 
printed, and there were also telegrams to Mr. Campbell in New Orleans which were paid 
for. The next large sums paid out were $8,000 paid to Mr. Andrews, and $8,000 paid to 
Judge Campbell, as a final fee in full ; this was in addition to the $2,500 and $2,000, 
respectively, before paid to these parties. 

Q. Who was first paid after the retainer.—A. Mr Andrews. 

Q. Was the same amount to be paid to Mr. Hamilton.—A. I do not know what contract 
was made with the attorneys ; it was made by some member of the committee—Mr. Waring, 
I suppose—and never reduced to writing; I was merely acting as clerk, and paid out under 
his order. 

Q. When did you pay this $8,000 to Mr. Andrews.—A. I think some time during the past 
summer; I did not pay him the money; I gave a check for the amount to Mr. Waring ; he 
told me lie wanted to send $8,000 to Mr. Andrews, and afterwards brought Mr. Andrews’s 
receipt, which I filed among the papers of the committee. 

Q. Was Mr. Andrews in Mobile last winter or summer.—A. I have very little acquaint¬ 
ance with him, and do not know ; he was not in Mobile at the time this check was drawn 
by me. 

By Judge Busteed : 

Q. Judge Busteed was not present at any of these meetings of creditors of Davis, Hall & 
Co.—A. No, sir. 

Q. I was then lying on my bed—having been shot—where I remained for nine weeks — 
A. Yes; I think this was a short time after that occurrence; I do not recollect the time you 
were confined to your room; it was, however, for some time. 

Q. Do you recollect the date when I was shot, and whether it was the 29th of December, 
]8b7.—A. I do not recollect the date ; I recollect the fact. 

Q. You have been asked about Mr. Bailey; had Mr. Bailey the appearance of a well-con¬ 
ducted gentleman.—A. Yes, sir; I have never seen anything wrong in his appearance. 

Q. Are you not a little mistaken as to the facts about Captain Cox’s assigneeship and 
resignation; is it not a fact that there was a petition to the court stating that the claim of 
the register was, that the creditors, not having selected their attorney upon the first meeting, 
according to law, were technically debarred of the right upon petition setting up the facts 
and asking me to appoint Mr. Cox ; do you recollect that.—A. I do not recollect that; I 
remember we were very much surprised at Mr. WorralPs statement that we had forfeited our 
right. 

Q. Is it not also a fact that Captain Cox gave his bond to enter upon the duties of assignee 
before his resignation.—A. I recollect hearing that he had given bond and accepted the posi¬ 
tion. 

Q. Do you know whether Captain Cox did not actually enter upon the execution of the 
duties of his office as assignee after Mr. Bailey was appointed, and continued for at least 
three days.—A. I know nothing about that, except that he gave bond and accepted the posi¬ 
tion and afterwards resigned. 

By Mr. Eldridue : 

Q. Did he give that bond knowing that Mr. Bailey had been appointed co-assignee._A. 

That is what I do not know ; we had attorneys who attended to the matter, and*of course 
had very little to do with it ourselves. 

By Judge Busteed: 

Q. Some person, you say, after Mr. Cox’s resignation, was joined with Mr. Bailey as 

assignee, and that person was the postmaster at Mobile; he gave bonds, did he not._A. I 

believe so ; I never examined the records; I left all that matter entirely to the attorneys 
whom we had employed to attend to our interest, and I paid very little attention to it; 
Woodruff & Barker are the parties named in the first petition. 

Q. Was the appointment of General Pierce as co-assignee with Mr. Bailey the result of 
any application to the court either as against Mr. Bailey or for any other reason, or on the 
motion of the court itself.—A. I understood that it was on the motion of the court itself 
that the payment was made by Judge Busteed. 

Q. Has that estate been settled—has there been any distribution.—A. Not long a"o the 
creditors were summoned together for the purpose of distribution, but there appeared to be a 
piece of property in Chicago which Mr. Davis stated he had every reason to believe could be 
recovered, and instead of withdrawing the money the creditors agreed to allow it to remain 


115 


and to be used for the purposes of litigation in regard to that property, which, if recovered, 
would be sufficient to pay all the debts. 

Q. When was that.—A. I cannot tell; not long ago. 

Q. At this meeting of the creditors of which you speak for the purpose of having a dis¬ 
tribution, and finally a determination to leave the funds in the hands of the assignee, was 
there any expression of opinion as to the manner in which the assignees had discharged the 
duties of their position.—A. No, I recollect not. 

Q. Was there any complaint made from any source.—A. None at all: so far as I was per¬ 
sonally concerned I was very well satisfied with Mr. Pierce ; I got acquainted with him and 
found him a very nice and estimable gentleman. 

Q. Mr. Cox resigned his assigneeship in writing.—A. I do not know how that was ; I have 
not examined the records of the court. 

Q. In relation to these fees of $5 each, which Mr. Worrall charged, do you mean to say 
that he charged that for simply administering the oath.—A. I never asked him; I carried 
this printed form, which was furnished, as I understood, by him, to Mr. Davis, and which Mr. 
Davis, having access to his book, filled out with the amount of the claims; this was done 
in order to facilitate the matter to getting claims before the court in the proper sums ; I carried 
this paper to Mr. Worrall, which he took and charged the fees, as I said, of $5, which I paid. 

Q. At the time you paid Mr. Worrall these two sums of $5 each, did you express any 
opinion or belief that it was an improper exaction.—A. I do not know that I thought so then ; 

I heard afterwards that the amount was thought to be excessive. 

By Mr. Eldridge : 

Q. What did he do, if anything, more than to administer the oath and effect his jurat — 
A. That was all ; the paper was prepared when I took it to him, by Mr. Davis, book keeper. 

I supposed it was the fee which was allowed for filing the claim and proving it before the 
court, until afterwards, when I heard some talk about it. 

Q. When you heard this talk that people considered it excessive, did you ever make an 
application to Judge Busteed to interfere in the matter.—A. I did not. 

Q. Did you ever authorize your attorney to make such an application to Judge Busteed 
for a revision of the charge.—A. I did not. 

Q. Do you know anything of what was done with the money you paid to him. — A. No, sir. 

Washington, D. C., January 13, 1S69. 

Thomas H. Herndon sworn and examined. 

By Mr. Smith : 

Question. State what you know concerning the proceedings in reference to 239 bales of 
cotton seized in Judge Busteed’s court in the name of the United States, claimed by the 
Planters’ Factory through Nunn & Thompson.—A. When I moved to Mobile in May, 1866, 
the case of the United States vs. 239 bales of cotton was pending in the district court at 
Mobile. Mr. Robert H. Smith, whose partner I then became, had been one of the proctors 
on behalf of the claimants; he, however, was not then attending that court, and it became 
my business, as a member of the firm, to attend the district court and give my care and 
attention to the various cases in which the firm were interested ; the cotton had already been 
libelled, and the claim, answer, and exceptions of the Planters’ Factory had already been 
filed before I became connected with the case. The first active part I took in the case was 
on the 21st of May, 1866; I think on that day, about 9 or a quarter-past 9 in the morning, I 
received a written notice, signed by Lawrence Worrall, acting district attorney, informing me 
that at 10 o’clock that morning a motion would be made in the district court for the sale of 
that cotton. At 10 o’clock 1 appeared in court—my recollection is that it was stated in the 
notice, or if not in the notice, in the motion, that it was made on the ground that the cotton 
was perishable or deteriorating—at 1U o’clock I appeared in court; the motion was called, and 
I stated that on account of the shortness of the notice I had had no opportunity to consult 
with our clients and get up counter-testimony as to the condition of the cotton, and I desired 
that the motion should lie over until the next day, or some future time, when I could be 
prepared to meet it. Judge Busteed seemed reluctant to grant the indulgeuee, but did grant 
it until the next morning at 10 o’clock. At that time, Judge William G. Jones (being, in 
fact, the leading counsel in the case) came into court and made a counter-motion, which is 
on record, I presume, to dismiss the case for want of jurisdiction, or, in case that motion was 
decided against the claimants, to be allowed to stipulate for the cotton. To enable the com¬ 
mittee to understand the matter, I will have to state that there were a great many exceptions 
filed to the libels, and, among others, against the jurisdiction of the court to entertain a libel 
of that sort and in that case. The only testimony introduced on the part of the government, 
I believe, was that of John Hardy, the marshal, and Jacob Wilson, deputy marshal, who 
were examined, stating as an opinion, from the condition of the cotton, the necessity for the 
sale, merely saying, “it ought to be sold.” Judge Jones, in presenting the question of 
jurisdiction, began to argue the case before the court, and in the course of the argument 
brought the attention of the court to the fact that this identical cotton was already embraced 
in a previous libel filed in the court of the middle district at Montgomery. He then pro- 


116 


duced a duly authenticated transcript of the record of proceedings in that case in the middle 
district. Judge Busteed at once, without inspecting the record or asking for it at all, said 
he had no difficulty in deciding that there was no case pending in the middle district; that 
he had not been in the middle district for a certain length of time. 

Q. Was there, in fact, any case pending in the middle district in reference to this same 
cotton.—A. I have not now a copy of those proceedings, and only speak from memory ; 
there was, however, a proceeding embracing the same cotton. My information, which is 
from hearsay, is that a libel had been filed fur something over 600 bales of cotton seized in 
the middle district. The cotton was bonded by the Planters’ Factory or by Nunn & 
Thompson, and 239 bales of that same cotton, after being bonded, was shipped to Mobile. 
When it arrived at Mobile, J. M. Tomiuey, then agent of the United States treasury for 
that district, seized the cotton, and pending its seizure, and while in possession of Tominey, 
the libel of information that I have spoken of was bled in Mobile. After the question of the 
pendency of a suit in Montgomery for the same cotton was disposed of in the manner I have 
described, Judge Jones brought to the attention of the court the fact that this cotton had 
been seized by Mr. Tominey, the treasury agent; that all the facts had been submitted to 
the Secretary of the Treasury, who had passed upon them and had ordered Mr. Tominey to 
release the cotton. Judge Busteed asked him if he had the order of the Secretary of the 
Treasury; Judge Jones told him, I think, that he had a copy of it. Judge Busteed told him 
to read it; he read it. Judge Busteed then told him to pass the paper to the court, which 
he did. The judge then told him to take his seat, and said the decision of the Secretary of 
the Treasury, so far from commending the case to his favor, absolutely disentitled it to any 
favor whatever at the hands of the court. Judge Busteed then commenced the delivery of a 
very severe and pointed rebuke upon the President and his cabinet, and particularly upon 
Mr. McCulloch, saying, that “if the cabinet would attend to their business and Mr. 
McCulloch to his greenbacks, the country would be in a better condition;” that “Mr. 
McCulloch had undertaken to decide, more than a thousand miles from where the case was 
pending, by telegraph, from representations and recommendations obtained,” (as he inti¬ 
mated,) “in terms, by bribery.” 

By Judge Busteed : 

Q. In terms, did you say.—A. No, but in substance. He did not say [use] the word 
bribery , but that was the impression made upon my mind by his remarks. I did not under¬ 
stand the language used as applied to Mr. McCulloch, but to some one else. He said be 
“ would teach the President and his cabinet that he was as independent of them as they were 
of him;” that “they could not interfere with the administration of justice in his court by 
proceedings of that sort.” These remarks of Judge Busteed covered some 15 minutes per¬ 
haps, in reference to the cabinet, and especially to Mr. McCulloch. After Judge Jones had 
concluded, I rose to say something in the case, and began to discuss the exceptions, and 
show that the exceptions were well taken, and ought to be a consideration to induce him not 
to order the sale of this cotton. He told me he had no doubt about the jurisdiction of his 
court in the premises, and that he did not desire to hear anything on the subject of jurisdic¬ 
tion or exceptions; he wanted to hear some reasons why the cotton should not be sold. I 
then directed my remarks to that point. He stopped me directly and said : “ Mr. Herndon, 
my mind is infallibly made up upon this subject; this cotton must be sold.” He then said it 
was his invariable rule, in suits where the United States were interested, to order the sale; 

“ but,” said he, “ if you desire to make a speech, I will hear it.” I told him I did not de¬ 
sire to make a speech if his mind was infallibly made up, and took my seat. He then called 
my attention to another suit in which I was interested, and which, he said, might form an 
exception to his ruling. In the case of the 239 he made the order that the cotton should be 
sold after 10 days’ notice by publication in the newspapers ; that was on the 22d of May. 

By Mr. Eldridge : 

Q. Did he hear any argument upon the motion at all.—A. None except what I have stated. 
The counsel for the United States, Mr. Worrall, I think, did not say a word. 

Q. Did you offer any evidence in regard to the situation of the cotton.—A. We offered 
evidence tending to show that the cotton was in a fire-proof warehouse, in a dry, safe place, 
where cotton was usually stored in Mobile, and I am not sure whether anything was said 
about its being insured, or whether the fact was that it was insured or not; my impression is 
that the cotton was under insurance by Nunn & Thompson, and that we offered to show 
that fact; I am not positive. 

Q. What was, in iact, the condition of the cotton.—A. I never saw the cotton, and I do 
not think we showed, on that occasion, anything about the actual condition of the cotton ; we 
only showed its condition at the time it was seized. The proof was that when the cotton 
was seized it was in good condition. 

Q. What was the pretence or proof on behalf of the United States showing the cotton to 
be in such a situation as necessitated its sale.—A. The proof of the witnesses, Hardy and 
Wilson, only their testimony was very brief. They alleged that the cotton was in a perish¬ 
able and wasting condition ; I do not remember from what cause. My recollection is that 
Mr. Hardy said that in his opinion it was necessary to sell the cotton to prevent its deterio¬ 
rating. If he stated any specific circumstance about it I do not now remember it. 


117 


Q. Was it shown that any calamity or casualty had happened to the cotton.—A. No, sir ; 
nothing of that sort was shown; there was no single fact shown that I remember; we 
showed, as I said, that it was in a fire-proof warehouse. I do not think the examination 
lasted more than 15 minutes altogether. That was the last I heard of the cotton until about 
the 20th of June, 1866. On that day I called on Mr. Worrall, the acting district attorney, 
seeing that the cotton was advertised for sale, and asked him if the cotton was to be sold. 
He informed me that he had forwarded the proceedings in the case-to Washington city, 
but had received no reply. 

By Mr. Smith : 

Q. How did he come to forward the proceedings to Washington city.—A. He had been 
ordered, by a telegraphic despatch from the Attorney General, to stop proceedings in the 
case and forward all the papers—[ think the despatch read, “to Washington.” Mr. Worrall 
said to me, in the same conversation, that Judge Busteed had called his attention to it, and 
asked him if he had received anything from Washington city upon the subject; that he 
could not allow the delay of the sale any longer, and that he (Worrall) had forwarded a report 
of the proceedings, but had received no reply. On the 27th of June—the sale having 
been advertised to take place on the 28th—John Hardy, the marshal, happened into my 
office, and I mentioned the fact to him that I saw the sale was advertised, and asked him if 
he intended to proceed with the sale. He replied that he had no orders to the contrary. I 
asked him if he had received a despatch from the Attorney General ordering the sale not to 
be made—a second despatch. He told me that he had not received any despatch. I then 
exhibited to him a copy of a despatch which had been forwarded to us by Waterson & 
Crawford, of this city. He said he had not received the despatch, and that, unless the 
sale was postponed by Judge Busteed’s orders, it would be proceeded with. In order that 
nothing might be left undone, I made a copy of the despatch and had it sent to Mr. Wor¬ 
rall. Whether it was served upon him or not I do not know; it was sent to him by a lad 
in our office named George Haig, who was the errand boy of the office. On the 28th the 
cotton was sold—at least that is my information; I did not attend the sale. 

By Mr. Eldridge ; 

Q. Do you know the cotton was sold.—A. Only from hearsay I state it to have been 
sold. I have examined the records and the files of the district court in this case, to see if 
there was any report of the sale, but I was unable to find any report on the files; in fact I 
found the papers themselves in rather a confused state, not in a separate package, and the 
libel itself was not on the file that I could find. I examined the records and minutes of the 
court to see if there was any report made, but I did not find any. I made this examina¬ 
tion the 1st or 2d of July, 1868, as I am able to state by a memorandum made at the time. 

T also went into the office of General Healey, the marshal, to see if there was any report of the 
sale there, but he had no memorandum of it on his books. He said it would probably be 
on the books of Mr. Hardy, who was not then in the city. After the 28th nothing more 
occurred in court in regard to the case until the 22d of December, 1866, when I was 
sitting in court, and J. Q. Smith, district attorney for the middle district of Alabama, being 
there in court, called up the case of 600 and odd bales of cotton. I heard the call 
made casually, and, supposing 1 had no interest in it, paid no attention. The motion was 
to transfer the case to the district court of the middle district of Alabama. Judge Busteed, 
turning the leaves of the docket, as if referring to the case, asked if the district attorney 
or the southern district consented. Something was said about that—I do not remember 
what, paying no attention to the matter. Mr. Martin, I think, was then district attorney, 
and I do not know whether he was present in court or not. Mr. Percy Walker, an attor¬ 
ney, sitting by me when this order was made, asked if that was not a case in which I was 
interested. I told him I was not interested in any case of that title. For greater caution, 
however, I got up and asked Judge Busteed if that was a case which had originated in 
Montgomery, in which the 239 bales were involved. I made this inquiry of the court before 
another case was called; stated that, as the case was not called by its title. I did not 
recognize it as one in which I was concerned or I would have opposed the motion to trans¬ 
fer, and asked that the order be set aside so that I could be heard. He referred me to J. 
Q. Smith, who said it was. I then recognized it as the case of the 239 bales of cotton. 
The order for the transfer, however, had been made. The judge said I could make a 
motion to set aside the order, and doubtless the district attoimey would assent to its being 
heard. I then asked that it might be postponed until the next day, Judge Jones, the prin¬ 
cipal counsel in the case, not being present. The next day the motion to set aside the 
order of transfer was called up and sustained by Judge Jones in a few remarks. Judge 
Busteed heard what he had to say, and J. Q. Smith opposed the motion to set aside the 
order, upon the ground that the court had no jurisdiction in the case, and read a decision 
from Howard’s Reports, in an Illinois case, which showed very distinctly, as I understood 
it, that the court had no jurisdiction. The court, after hearing what he had to say, refused 
the motion to set aside the order, stating that the argument of Judge Jones would be a very 
good showing in opposition to granting the order originally, but a very poor showing to set 
aside the order which had been made. I remarked to J. Q. Smith that if the court had no 
jurisdiction, as I believed it had not, I thought, instead ot being transferred, it ought to 
have been dismissed. 


118 


Q. Did the court hold that it had no jurisdiction.—A. Judge Busteed did not decide 
that; lie only referred to the argument of Judge Jones, that he had been taken by surprise 
by the motion, and asked that the order to transfer might be set aside. We had raised the 
question of jurisdiction in support of the exceptions we took on the motion to sell, on the 
ground that this was a part of the 600 and odd bales which had been libelled in Mont¬ 
gomery, and the judge then said he had no difficulty in deciding that he had jurisdiction. 
This was on the 22d day of December, 3 866, the cotton having been sold on the 26th ot June, 
preceding. 

By Mr. Smith : 

Q. Was there any such case on the docket as the 600 odd bales which was called when 
the motion to transfer was made.—A. There was no such case there which I knew by that 
title; we had none of that title. If I ever knew r I have forgotten how many bales were 
involved in the case in Montgomery which covered these 239 bales, and the case being 
called by J. Q. Smith as the United States vs. 600 and odd bales, instead ot 239 bales, 
misled me. The title of this case on the docket was the United States vs. 239 bales of 
cotton. 

Q. Was the fact brought to the attention of the court, when you made the motion to set 
aside the order, that the case had been called by the wrong title.—A. It was. 

Q. Was the fact denied by the other side.—A. No, sir. 

Q. Did the judge recall it.—A. He did not say whether he would or not; he did not 
deny it, nor did Mr. Smith, and the motion to vacate the order was made immediately after 
the order was granted. I should not have noticed the case at all if Mr. Walker, who sat by 
me, had not called my attention to it. Nothing further occurred in regard to the case until, 
according to the minutes of the court, the 2Jst of May, 1867, when Mr. Rufus F. Andrews 
rose in court, and, calling the attention of the court to it, stated that that case had been 
transferred to Montgomery in his absence without his consent; that he appeared to repre¬ 
sent the United States, and asked that the case be reinstated on the docket in Mobile. I was 
present in court. Judge Busteed asked me if I had anything to say why the motion should 
not be granted. I said I had opposed the transfer originally, and of course had nothing to 
say in opposition to the case being reinstated. 

Q. In the mean time J. Q. Smith had been removed from his office of district attorney.— 
A. I so understood; the order to reinstate the case having been granted, Mr. Andrews asked 
that the case be set down for trial the next morning; I stated that it would be impossible for 
me to try the case the next morning; that I had supposed it would be tried, if at all, in 
Montgomery, and had sent all the papers in the case to Montgomery; that the witnesses 
were at a distance, and that it wouid be impossible for me to get ready. Judge Busteed 
replied to that, that the case had never been transferred, and that it was my business to know 
it; but Mr. Andrews said he appreciated the condition of the case, and consented for it to be 
laid over until the second day for trial, and it was so laid over. 

Q How far were Nunn & Thompson, the claimants, from Mobile at that time.—A. They 
lived in Autauga county, I suppose 200 miles from Mobile; I do not know the distance, 
probably half a day’s ride from Montgomery, and not connected with Montgomery by railroad 
or telegraph, so far as I am aware of; I have never beeu there. The case, however, was not 
tried, and I have no recollection of its ever being called from that day to this, and do not 
know what became of it. I examined the docket in the front part of the book, where I should 
expect it to be found, and asked the clerk what had become of it. He turned to the back 
part of the book, and there I found it entered with other cases, which the clerk said were 
cotton cases. It has certainly never been called in my presence. 

Q. Look at the affidavits now shown you, and state if you have had any conversation 
about them with Judge Busteed.—A. I never showed these affidavits to Judge Busteed; 
copies of them were forwarded by me to Waterson &. Crawford, our correspondents in Wash¬ 
ington city, to be laid before the Attorney General. Sometime after the transactions I have 
been speaking of occurred, the date I do not remember, I happened in court one day when 
there was a case pending in which the firm of Hurtel & Hammond were parties. After 
sitting down in court I soon discovered the nature of the case, and thinking it might throw 
some light as to what had become of this cotton, I listened to it; I was about starting out of 
the court-room when Judge Busteed called me to the bench aud asked me if I was not coun¬ 
sel in the case of 239 bales of cotton ; I told him I was; he told me he had seen in Wash¬ 
ington the affidavits I had sent there on the subject, and that they had had a large influence 
in causing the removal of Mr. Hardy; he said the affidavits very clearly shewed the substi¬ 
tution of the cotton, and that if Mr. Hardy was guilty of it “he ought not only to have 
been removed but hung,” but that he was satisfied that Mr. Hardy was not guilty ; that “ he 
had not been concerned in the substitution,” aud he had no doubt I would be glad to see Mr. 
Hardy vindicate himself and following this was some conversation highly eulogistic on his 
part of Mr. Hardy. I told him I would be glad to see Mr. Hardy, or any other public officer, 
vindicate himself from so grave a charge. He then said that he had the most indisputable, or 
incontrovertible (I do not remember which word was used) evidence that Mr. Hardy was 
not guilty, and that if I would make a motion like the one then pending in court, we would 
get at the guilty parties. I simply declined to do anything in the matter. He said he wished 
to see me again on the subject, but did not. 


119 


Q. Why did you decline. A. I did not state my reasons to Judge Busteed. I had several 
leasons. In the first place, the United States had seized the cotton, and I considered it as 
much the duty of the court as it was of the claimants to ferret out such a proceeding; in the 
next place, I did not believe that Hurtel <Sl Hammond were guilty of the charge; they were 
warehousemen, and were men of as good standing as any in Mobile. 

By Mr. Eldridge: 

Q. In this conversation with the judge at the bench, when he spoke of ferreting out the 
guilty parties, did he intimate who he thought was guilty.—A. No, he did not, except in this 
way : Hurtel & Hammond were the parties against whom the motion was then being tried 
in court in a similar case where cotton had been substituted, and he said that if a similar 
motion were made by me in the case of the 239 bales we would get at who were the guilty 
parties. 


By Mr. Smith : 

Q- Bid I understand you to say he announced beforehand that John Hardy was not 
guilty.—A. He said that he had “indisputable, or incontrovertible, evidence that John Hardy 
was not guilty of the charge,” and then said a good deal in his praise as a public officer and 
as a man. 

Q. fie made no proposition to inquire as to whether John Hardy was guilty or not.—A* 
The only proposition he made I have stated, and when I left the interview was suspended, 
I supposed to be resumed at another time. 

Q. Do you say that case has never been tried.—A. Not to my knowledge ; I have not been 
in Judge Busteed’s court regularly for some time, and cannot say that it has not been called. 

Q. Do you know what became of the proceeds of the sale of this cotton.—A. I do not. 

(The affidavits above referred to, Judge Busteed assenting, were here read and placed in 
evidence, as follows:) 

Before me, William Brooks, a justice of the peace in and for Mobile county, Alabama, 
personally appeared R. D. Price, who is personally known to me, and who, after being by 
me first duly sworn, says: That he is a cotton weigher in the city of Mobile ; that he weighs 
the cotton consigned to Messrs. Nunn & Thompson, upon its arrival in Mobile ; that on the 
24th day of January, 1866, he weighed 25 bales of cotton marked [F, ] and that the follow¬ 
ing are the weights of said bales, respectively, as taken down by him at the time, to wit: 
544, 518, 542, 522, 542, 482, 564, 496, 480, 520, 618. 512, 560, 416, 590, 504, 426, 570, 494, 
576, 506. 562, 466, 608, 540; that on the 26th day of January, 1866, he weighed 25 bales 
marked [F ; ] a!nd that the weights are as follows, to wit: 556, 476,594, 516, 488, 590, 538, 560 
538, 560, 504, 542, 622, 466, 486, 534, 558, 484, 556, 562, 514, 4:18, 550, 506 ; that on the 
29th day of January, 1866, he weighed 25 bales, and the weights are as follows, to-wit: 742, 
570, 442, 444, 572, 574, 446, 496, 612, 580, 600, 518, 534, 568, 546, 478, 540, 542, 438, 560, 
476, 568, 598, 580, 526; that on the 29th January, 1866, he weighed 25 bales, aud the 
weights are as follows, viz. 504, 558, 538, 498, 528, 488, 518, 556, 520, 496, 522, 568, 590, 
512, 558, 524, 466, 520, 578, 554, 514, 600, 482, 460, 636; that on the 31st January, 1866, 
he weighed 25 bales, and the weights are as follows, viz: 462, 556, 586, 516, 510, 404, 624, 
352, 428, 340, 514, 540, 500, 416, 426, 576, 518, 564, 552, 396,580, 626, 336, 626, 486; and 
on the 2d February, I860, he weighed 25 bales, and the weights are as follows, viz : 592, 580, 
540, 578, 540, 520, 590, 476, 520, 524, 502, 522, 534, 532, 580, 572, 414, 510, 48 S 566, 508, 
494, 660, 570, 524; and on the 5th day of February, 18(56, he weighed 25 bales, and the 
weights are as follows, viz: 696, 482, 560, 606, 516, 5(50, 580, 578, 538, 554, 500, 520, 600, 
672, 580, 590, 608, 554, 654, 550, 508, 626, 448, 510, 666; and on same day lie weighed 24 
bales, and the weights are as follows, viz: 570, 540, 600, 414, 540, 556, 540, 534, 406, 530, 564, 
390, 350, 630, 420, 524, 576, 520, 348, 550, 600, 424, 520, 408 ; and on the 12th February, 1866, 
he weighed 42 bales, aud the weights were as follows, viz: 560, 660, 492, 520, 520, 656, 636, 
576, 626, 626, 620, 636, 568, 448, 512, 626, 568, 620, 546, 646, 546, 454, 648, 522, 586, 448, 
572, 482, 506, 500, 356, 522, 528, 534, 448, 540, 624, 568, 602, 566, 580, 512; that all this 

cotton was marked [F; ] that the aggregate weights of said cotton amounted to- 

pounds : that said cotton at that time was in merchantable condition, and that the few bales, 
viz: 18 bales, which were notin good condition, were sent to the pickers and repaired before 
the seizure, by the United States marshal. Affiant further says, that on the — day of June, 
1866, he went to the “ Verona warehouse,” in the ci r y of Mobile, and examined a lot of cot¬ 
ton marked [F,] which was pointed out to him as the 239 bales of cotton claimed by the 
Planters’ Factory at Autaugaville, and which were to be sold by the United States marshal 
on the 28th June, 1866; that said cotton looked as if most of it had been repacked with very 
inferior cotton ; cotton samples that had been wet and dried, not resembling the cotton 
seized from Nunn & Thompson, and some of it not worth more than five or six cents ; that 
from the size of the bales aud the weights marked on them, (which were picking weights,) 
they would not average in weight scarcely more than one-half the original bales seized from 
Nunn & Thompson. 

R. D. PRICE. 

Subscribed and sworn to before me this 18th day of June, 1866. 

WILLIAM BROOKS, J. V. M. C. 



120 


Before me, William Brooks, a justice of the peace in and for the county of Mobile and 
State of Alabama, appeared Charles Blackledge, who, being- by me first duly sworn, sabh : 
That he is, and has for many years been, a cotton sampler in the city of Mobile. The usage 
and custom in reference to cotton arriving in Mobile is, as soon as the cotton has been deliv¬ 
ered from the steamboat on the wharf the weigher weighs each bale, and the sampler then 
goes through it and draws from each bale a fair sample, which is by him returned to the 
office of the consignees and factors of the cotton. This is all done before the cotton is taken 
from the wharf where it is landed. On January 30, 1866, he sampled 25 bales of cotton, 
marked [F, ] which came on the steamer Welcome ; on 30th January, 1866, he sampled 25 
bales, same mark, which came on the steamer Cherokee; on 27th January, 1866, he sam¬ 
pled 25 bales, same mark, which came on the steamer St. Charles; on the 24th January, 
1866, he sampled 25 bales of cotton, of same mark, which came on steamer Cherokee ; on 
13th of February, 1866, he sampled 42 bales of same mark, which came on steamer 
Cherokee ; on 5th February, 1866, he sampled 24 bales of cotton, same mark, which came 
on steamer Cherokee; on 4th February, 1866, he sampled 25 bales, same mark, which came 
on Republic ; on 4th February, 1866, he sampled 25 bales, of same mark, which came on 
steamer St. Charles ; on 1st February, 1866, he sampled 25 bales of cotton, same mark, 
which came on the steamer Coquette ; all of which several lots of cotton were assigned to 
Messrs. Nunn & Thompson, and sampled by him for them, and the samples, as usual, 
returned to their office. 

Affiant is the regular sampler for Nunn &. Thompson, and does all their sampling. They 
received no other cotton marked [F] during the winter since January 24, 1866, up to this 
time than the lots above mentioned. 

At the time he sampled said cotton it was all in good order, and had not been repacked, 
and would average, he would say, common middling in its classification. 

The samples have remained in the office of Nunn <fc Thompson to this time. Affiant 
exhibited them to Mr. Hugh McCain, a broker and experienced classer of the city of Mobile, 
who examined and classed the same. 

CHARLES BLACKLEDGE. 

Subscribed and sworn to before me this 30th day of June, 1866. 

WILLIAM BROOKS, J. P. M. C. 

Before me, William Brooks, a justice of the peace in and for the county of Mobile and 
State of Alabama, appeared States G. Deas, who, being by me first duly sworn, says: That 
he is a clerk in Miller’s warehouse, attached to Shippers and Planters’ press, and was act¬ 
ing as such in January and February, 1866 ; that on the 30th day of January, 1866, 50 bales 
of cotton, marked [F,] and on the 3d of February, 1866, 23 bales of cotton, marked [F.] 
were stoied in said warehouse by Nunn & Thompson, factors ; that all of said bales, except 
two bales, were in good order when they came into said warehouse; that these two bales 
had been sent to the pickery, and sent back in good order. They remained in the warehouse 
until the 15th day of April, 1866, when they were seized and taken away by the marshal 
of the United States. They were at that time in good order, and would weigh or average 
500 pounds and upwards, apparently. They were carried from Miller’s warehouse into Beebe’s 
warehouse. The cotton, when it went out of Miller’s warehouse, was in the original pack¬ 
ages, and had no indications of having been repacked and no appearance of being mixed. 

Affiant went through and looked at the 239 bales of cotton in the Verona warehouse, and 
sold to-day (28th June, 1866) by the United States marshal as the cotton seized from Nunn 
& Thompson. The cotton seemed to him to be repacked, and some of the cotton wet and 
dried, and one bale he noticed was a rejected bale, that is, a bale that had been sold and 
thrown back on the seller. The cotton that he saw was a very inferior quality ; the bales 
were small, and would not average more than 350 pounds per bale. The bagging was dif¬ 
ferent from that on the bales that had been in the Miller’s warehouse, and the bales were 
freshly marked [F. ] 

STATES G. DEAS. 


Subscribed and sworn to before me this 29th day of June, 1866. 

WILLIAM BROOKS, J. P. M. C. 

Before me, William Brooks, a justice of the peace in and for the county of Mobile, State 
of Alabama, appeared John Johnson, jr., who, being by me first duly sworn, says: That he is, 
and was in January, 1866, a clerk in Shippers’ press, Mobile; that, during the month of 
January Messrs. Nunn & Thompson, factors, stored in said press 74 bales of cotton, marked 
[~F;] that said cotton remained in said press about two months, until it was seized and 
taken away by the United States marshal in April. At the time said cotton was brought to 
the press, and at the time it was taken away by the marshal, it was in good merchantable 
condition, and of usual size of bales from Alabama river, and appeared to be heavy bales. 
It did not appear to have been repacked or mixed. 

Affiant further states that he went through and looked at the 239 bales of cotton sold by 
the marshal to-day, (28th June, 1866;) that the said 239 bales were about two-thirds the size 


121 


of bales which are taken from Shippers’ press ; had all been to the pickers and was of the 
lo»vest trash of pickings, called in classic terms “dogtail,” which is the lowest grade of 
cotton. Said bales had all been repacked and were what is called “picking bales. ”” 

Affiant compared the samples exhibited by the marshal with the bulk in the bale, and they 
corresponded. 

JOHN JOHNSON, Jr. 

Subscribed and sworn to before me J une 28, 1866. 

WILLIAM BROOKS, J. P. M. C. 

Before me, William Brooks, a justice of the peace in and for the county of Mobile, State 
of Alabama, appeared Charles Jackson and John Dooley, who, after being by me first 
sworn, say : That they are tiersmen in the Planters’ and Okatona warehouses, and were so 
acting in January, 1866 ; that 92 bales of cotton maked [F] were stored by Nunn & Thomp¬ 
son in the Planters’ warehouse in January and February, 1866, and remained there until 
some time in April, when it was seized and carried away by the United States marshal. All 
of said cotton, except one bale, was in merchantable condition at the time it came into said 
warehouse, and when it was taken out by the marshal. Said bales of cotton were large, 
and, according to the opinion of affiants, would average about 520 or 530 pounds per bale in 
weight. This cotton was taken to Beebe’s warehouse and thence to Verona warehouse. 
Affiants went through and looked at the 239 bales of cotton at the Verona warehouse, marked 
[F, ] and sold to-day (28th June, 1866) by the United States marshal, as the cotton seized 
from Nunn & Thompson, it was not, or had not the appearance of the cotton that was deliv¬ 
ered from the Planters’ press; the bales were much smaller in size, averaging, apparently, 
about 350 or 360 pounds per bale ; had all been to the pickery, had been repacked and made 
up of small pickings of the lowest grade of cotton. 

Except the one bale spoken of none of the 92 bales required to be sent to the pickery when 
it left the Planters’ press, and had it been kept under cover it would not in the time that has 
elapsed since leaving the Planters’ press, nor in a much greater time, have been necessary to 
have it sent to the pickery. 

CHARLES JACKSON. 

JOHN DOOLEY. 

Sworn and subscribed to before me this 28th day of June, 1866. 

WILLIAM BROOKS, J. P. M. C. 


State of Alabama, Mobile County: 

Before me, William Brooks, a justice of the peace, personally appeared Hugh McCam, 
who being by me duly sworn, saith : That he has for many years been engaged in the business 
of classing cotton in the city of Mobile, and is familiar therewith ; that at the request of Nunn 
& Thompson he carefully examined the samples of 241 bales of cotton which were pointed 
out to him by Charles Blackledge as the samples of certain lots of cotton marked [F ; ] that he 
classed said cotton fully middling to ordinary, and that, on an average, said cotton classed 
Liverpool, common, middling. Affiant further says that on the 29th day of June, 1866, he 
examined and classed in Verona warehouse 239 bales of cotton maked [F,] at the request 
of Joseph E. Murrell, esq., and that said cotton was represented to him by the warehouse 
keeper, Mr. Travis and others, as having been the same cotton that was sold by the United 
Stated marshal at public auction, or sale, on the 28th day of June, 1866; and affiant further 
says he classed said cotton as follows : 

12 bales light, good, and ordinary, mixed and repacked. 

120 bales good, ordinary, mixed, and repacked. 

8 bales ordinary, red. 

92 bales repacked and badly mixed with unsound cotton. 

2 bales badly mixed with discolored cotton. 

5 bales rotten and dried and almost worthless. 


239 bales cotton. 

= HUGH McCAM, Cotton Broker. 

Subscribed and sworn to before me this 30th day of June, 1866. 

WILLIAM BROOKS, J. P. M. C. 


The State of Alabama, Mobile County: 

Personally appeared before me, William Brooks, a justice of the peace in and for the State 
and county aforesaid, Sherwood Hall, who, being duly sworn, says that he is a messenger in 
the American Telegraph Company, Mobile office, and that he is employed to deliver des 
patches received for persons in Mobile; that on the 26th day of June, 1866, lie delivered to 
J. Wilson, United States deputy marshal at Mobile, Alabama, a despatch directed to L. 
Worrall, or John Hardy, and that he took a memorandum receipt in his check book trom 




122 


said Wilson for said despatch, and that the said receipt bears date June 26, 1866, and that 
he distinctly remembers delivering said despatch to the said Wilson without refreshing l*is 
memory by consulting said receipt. 

SHERWOOD HALL. 


Subscribed and sworn to, this the 2d day of July, before me. 

WILLIAM BROOKS, 

Justice of the Peace , Mobile County. 

Before me, William Brooks, a justice of the peace in and for Mobile county, State of 
Alabama, appeared Thomas H. Herndon, who, after being by me first duly sworn, saith 
that John Hardy, United States marshal, was in his office on the 27th day of June, 1866 ; 
that affiant asked him if he would sell the 239 bales of cotton (meaning the planters’ factory 
cotton) on the next day, (the 28th June;) that he replied he had no orders countermanding 
the sale. Affiant asked him if he had not received a despatch from Mr. Attorney General 
Speed, telling him not to sell; stating to him that Smiths and Herndon had been informed by 
despatch from Washington city that such a despatch had been sent to him and Mr. Wor- 
rall. He replied that he had received no such despatch. 

THOMAS II. HERNDON. 

Subscribed and sworn to before me this — day of July, 1866. 

The State of Alabama, Mobile County : 

Personally appeared before me. William Brooks, a justice of the peace in and for the State 
and county aforesaid, E. D. Sandford, who, being duly sworn, says that he is employed in 
the Mobile office of the American Telegraph Company as a clerk, and that it is his regular 
duty to enter on the books the numbers, the addresses, and the number of words of des¬ 
patches received at Mobile, Alabama; and affiant further says that on the 25th day of June, 
1866, a despatch was received at the said Mobile office from Washington city, directed to L. 
Worrall, United States attorney. Mobile, Alabama ; that said despatch contained nine words 
in the body of it, exclusive of the address and signature, and that the Washington office 
had marked said despatch with the No. 16: and that on the 26th day of June, 1866, the 
said despatch, No. 16, was placed in the hands of the messenger, Sherwood Hall, for deliv¬ 
ery; that said despatch is the only despatch which was received at the Mobile office from 
Washington for the said Worrall for several days previous to the 25th of June, 1866 ; and 
affiant further says, that on the 2d day of July, 1866, he despatched to the Washington 
office for a duplicate of despatch No. 16 of the 25th June, 1866; and that he did this with¬ 
out stating the contents of said despatch, No. 16, or in anywise referring to its contents, and 
that he received on the 3d day of July, 1866, a duplicate in the following words : 

“To L. WORRALL, United States Attorney , Mobile , Alabama: 

“ The marshal must not sell the planters’ factory cotton. 

“JAMES SPEED, 

“Attorney General .” 

E. D. SANDFORD. 

Subscribed and sworn to before me, this 4th day of July, 1866. 

WILLIAM BROOKS, 

Justice of the Peace , Mobile County. 

By Mr. Smith : 

Q. Do you remember when Judge Busteed suddenly left the court, on a despatch stating the 
illness of one of his daughters, and went to New York. —A. I remember hearing that he’had 
received such a despatch. Judge Busteed has left Mobile suddenly so often for New York 
that I can hardly state certainly in regard to this particular occasion. 

Q. Have you preserved a copy of the proceedings which took place iu court one day.— 
A. I have a copy purporting to be one day’s proceedings in the circuit court of the United 
States on the 24th of December, 1866. 

Q. Who made that report.—A. I made it simply for my own amusement, having nothing 
else to do. 

Q. Is it correct or incorrect.—A. It is substantially correct. 

(The report referred to was here offered in evidence, but ruled out by the committee.) 

Q. Were you in court on the 24th day of December, 1866.—A. I was. 

Q. State as nearly as you can what took place on that day —A. According to my recollec¬ 
tion that was the first day of the term of the circuit court for that fall. Judge Busteed announced 
in the beginning that he would sound the docket, saying that the call would not be peremp¬ 
tory, and that no case would be tried where there was an appearance entered and a plea 
filed, counsel not consenting. The cases on the docket were called over, and the first I recol¬ 
lect was the case of Lombard & Co. vs. Russell and Dunlap, in which I was counsel for the 
defendants, and which, although I stated I was not ready for trial, was yet tried that day 
after the call had been gone through with. 


123 


Q. Do you remember what was done in the case of Hotchkiss and Fenner vs. Rosendorf 
&. Co., in which Judge Dargin and Mr. Manning were concerned.—A. I recollect the case. 

Q. State who is Judge Dargin.—A. He is a lawyer in Mobile. My opinion of Judge 
Dargin is, that he is a man who was always very respectful and deferential to the court. He 
is a man of peculiarities and eccentricities. He has been chief justice of the State. 

Q. What is the standing of his judicial opinions while chief justice of Alabama.—A. They 
rank very high with the profession, equal to those of any judge who has been upon the bench 
in Alabama. 

Q. What is his conduct in court.—A. As I have said he is a man of eccentricities and 
peculiarities, slovenly in his dress and habits, but so far as his demeanor in court is con¬ 
cerned, I know no man who demeans himself with more dignity, propriety, and deference to 
the court 

Q. Do you remember during that day of any matter having transpired in which Mr. Hall 
took a part. —A. There was a case in which Mr. Hall was counsel for the plaintiff. I think he 
represented, probably, the Florida Railroad Company. When the case was called Mr. Boyles, 
who represented the defendant, said he was ready for trial; that his witnesses, who were from a 
distance, were then in court. Judge Busteed asked Mr. Hall what he had to say. Mr. 
Hall said he was not ready; that the call was not peremptory ; that the case was low down 
on the calendar, and he saw no reason why an exception should be made in not allowing 
this case to go over until another day in the term. The judge remarked that he would 
return to the case after the calendar had been gone through with ; and then remarked, “I 
will say to you, brother Hall, that you had better be getting ready.” After the calendar 
had been gone through with, the case I before mentioned was again called. Mr. Hall 
stated that he was not ready, and his reasons for asking that the case be laid over until 
some other day in the term. The counsel for the defendant, Mr. Boyles, insisted that the 
trial should proceed: that his witnesses were from a distance, and that they should proceed 
at once. The trial was ordered. Mr. Hall said he was not ready, and would take a non¬ 
suit. Judge Busteed remarked that he would dismiss the case for want of prosecution. Mr. 
Hall preferred to take a non-suit, and Judge Busteed asked him what was the effect of a 
non-suit according to the laws of Alabama. Mr. Hall replied that it carried the costs against 
the party taking it, and that two non-suits were equivalent to a verdict. Judge Busteed 
said Mr. Hall did not understand the question ; was there any penalty attached to a non¬ 
suit, as there was in New York ? To which Mr. Hall replied that there was no penalty 
except that it carried the costs. Judge Dargin interposed to say something, but the judge 
remarked that Mr. Hall was able to take care of himself, and Judge Dargin desisted. Mr. 
Hall and Judge Dargin, however, were allowed to retire for consultation, and when they 
returned Mr. Hall insisted upon anon-suit, which Judge Busteed allowed with a penalty of 
$ 10 . 


By Mr. Woodbridge : 

Q. Was not the penalty in the nature of an allowance to the attorneys of the opposite 
party.—A. I do not know; it was a novel thing to me. Our practice is that a non-suit 
simply carries the costs to the plaintiff, but no allowance beyond. 

By Mr. Eldridge : 

Q. Is there a fee bill in your State fixing the fees of attorneys.—A. Yes, sir. 

Q. What would have been the fee allowed to attorneys in case of a non-suit.—A. The 
fees ranged from $4 to $10 in ordinary cases, in accordance with the amount involved in the 
case. The fees allowed in the United States courts, I think, are $10 in certain cases and 
$20 in certain cases. 

Q. Was Judge Busteed informed what the practice was in Alabama.—A. He was told that 
according to the laws of Alabama a non-suit carried the costs, which included clerks’ and 
marshals’ fees and attorney’s tax fee simply ; and when he allowed the non-suit I think his 
remark was simply “non-suit allowed and $10 penalty.” I do not know whether the penalty 
was against the attorney or the plaintiff, or who it was; but it was $10 in addition to the 
costs. My impression at the time was that it was to be paid by the attorney, but that was 
merely an impression, which may be correct or incorrect. 

Q. Do you remember anything in reference to Judge Dargin asking that the motion he 
'had made should be entered upon the docket, and his exceptions to the ruling of the court 
entered; and if so, what was the reply of Judge Busteed.—A. That was in some case, the 
title to which I do not remember, in which some objection was raised to the complaint. 
Another objection raised was the want of a stamp on the writ, which was obviated by the 
attorney, J. Q. Smith, putting one on. Then Judge Dargin asked that, for the amendment, 
terms should be imposed upon the plaintiff; that he should allow a continuance of the case 
until the next term, with costs. Judge Busteed to that said: “ ‘ Hope springs eternal in the 
human breast,’ Judge Dargin;’’and then turning to Mr. Smith, said: “You have your 

judgment.” . . 

Q. State what occurred in regard to P. Walker.—A. A case came up of the same descrip¬ 
tion of that I have just stated, in which Percy Walker appeared on one side and J. Q. Smith 
on the other. Mr. Walker said that the objection he made was the same as that made by 


124 


Judge Dargin, but he supposed would prove alike unavailing. Judge Busteed told Mr. 
Walker to state what his objections were, which he did, and the judge said that Mr. Smith 
must take his judgment. Mr. Walker then asked if Mr. Smith had furnished the court with 
a copy of the pleadings under the rule. To which Judge Busteed remarked: “I beg your 
pardon, Mr. Walker; I had forgotten that you were an associate justice of this court.’' lie 
then added: “If you ask me historically whether copies have been furnished me I will tell 
you historically that none have been furnished, and that the time has not yet arrived in this 
case for copies.” The ruie established in Judge Busteed’s court was that no case should be 
heard and no trial take place until copies of the pleadings had been furnished to the court. 
In this case, however, judgment had been given to Mr. Smith before the point was raised, 
and I think Mr. Walker’s motion for copies came too late, because the case had already been 
disposed of; but the reply of the judge was that the time had not yet arrived tor copies to be 
served. 

Q. What was the manner and tone in which he replied to Mr. Walker, that he begged his 
pardon, and forgot that he was an associate justice of that court.—A His tone seemed to be 
half pleasantry and half satire. Judge Busteed bowed to him and made the remark ; it ap¬ 
peared to be intended as a pleasantry as much as anything else. 

Q. To what day was the court then adjourned.—A. By reference to the memorandum I 
have before me I answer that it was adjourned until the first Monday in February, at 
9 o’clock. 

Q. Do you know of any reason for adjourning the court until that day.—A. No, sir; I do 
not remember of any now. 

Q. Were you in court when the case of A. B. Wood against De Forest Richards was 
tried.—A. I was not. 

Q. State whether you went to Judge Busteed for a writ of error.—A. I did go to his pri¬ 
vate chambers with a petition, writ, citation, and all, ma le out in the office by you or under 
your directions. You had lequested me to see the judge and get him to grant the writ. I 
went to his room, I think, on the evening of Saturday, I do not remember the date, in com¬ 
pany with W. G. England, and presented tlie papers to the judge, telling him what I de¬ 
sired. He said he would grant it with pleasure if he could, but that the case had been dis¬ 
missed for want of jurisdiction. He asked how it was possible to grant an appeal or a writ 
of error in a case over which he had no jurisdiction. I made the suggestion that that was 
the point on which we desired to appeal. He said he did not see very well how a case that 
had no existence could be vitalized in that way; that he did not wish to commit a judicial 
solecism by granting a writ of error in a case that had been dismissed for w r ant of jurisdic¬ 
tion. He wished Judge Campbell was there to consult with him about it. He remarked, 
however, that he was busy then, and that if I would come back on Monday morning and 
bring such authorities as I could to convince him that I had the right to demand, and he 
the right to grant, the writ of error, he would do it. On Monday morning I went back, carry¬ 
ing with me authorities to which I expected to refer him, but when I got there he said it was 
unnecessary; he had decided to grant the writ, which he accordingly did, and endorsed the 
petition ordering the clerk to take a bond of a specific amount. In the last interview, however, 
he asked me what would be in the record of the case. I told him the record would be the 
compiaint, the summons, the plea, the demurrer, the return of the marshal, judgment, &c. 
He asked if the mortgage was not going in. I told him I did not know; that I was not 
familiar with the case, but I could not see how the mortgage would become a part of the 
record. He said the mortgage was before the court, and that he thought the Supreme Court 
ought to have the same information which he had in rendering his decision, and requested 
that I should deliver the mortgage to his clerk to be copied in the record. 

Q. How have you been treated in that court.—A. I have always been treated with great 
politeness by Judge Busteed. 

Q. How many arguments has he ever allowed you to make.—A. I have never made any 
in his court. 

Q. What is the reason.—A. I can only state, in this way, when I have attempted to say 
something in regard to the particular matter in issue Judge Busteed would, in some way or 
other, stop me, as in one instance in the case of Lombert &. Co. vs. Russell & Dunlap, 
already spoken of, he said that the question had been argued by some of the ablest men in 
the State, and that he had already decided it. He has never allowed me to say many words 
consecutively in his court, but he has always interrupted and stopped me in a polite manner. 
I remember making the remark to him out of court, once, that he always choked me off po¬ 
litely. I remember in one case there was a demurrer to a complaint which I had filed, a 
case in which the Western Union Telegraph was a defendant. The counsel for the defendant 
argued the case at length, but when I rose to reply Judge Busteed said that he had no doubt 
the demurrer w r as well taken, and that I must amend my complaint. My opinion was that 
the demurrer was not well taken. 

Q. State what you know in reference to an application for the admission of Mr. Griffin to 
the bar, and who he is.—A. He is the editor of the Nationalist, a paper published at Mobile. 
In regard to his admission to the bar, I only know that I w T as appointed by the court, with 
two other members of the bar, to examine Mr. Griffiu, and other persons applying for 
admission. I made an application on behalf of one or tw r o other persons to be admitted to 


125 


the bar. Judge McKinstry and John T. Taylor were appointed, with myself, to make the 
examinations. We called the other young men before us, and waited some days for Mr. 
Griffin, but he did not appear. I then made a report which 1 wrote myself, recommending 
other young men for admission, and stating that Mr. Griffin had not appeared before the 
committee, and asking for a discharge from any further consideration of his application. 
Judge Busteed asked me if we had notified Mr. Griffin of our appointment. I tuld him I 
had been informed so by Judge McKinstry. He asked me to take the report back and make 
that statement of it, but finding that Judge McKinstry was not positively certain of havino* 
given notice, 1 wrote a notice there, in court, and had it served upon Mr. Griffin, statin^ 
that we would meet him at any time and place he might name. I sent the note by S. S. 
Houston, who said he delivered it. Mr. Griffin never appeared before us, and we never ex¬ 
amined him. When his report, to which I have referred, was made to Judge Busteed, he 
requested me to separate the cases so as to allow the others to pass, and let Mr. Griffin’s 
case stand on its own bottom. He said I need be under no apprehension as to the admission 
of my friends, and then said Mr. Griffin had shown him a license, I believe he said from 
“Bleeding Kansas,” and that he had also obtained a license from the circuit court of the 
State. He asked me to insert in the report that Griffin refused to appear, and also to correct 
one misspelt word in it. 

Q. Were you requested not to put anything in the report that was not true. —A. He 
requested in the first place that I should put in that Mr. Griffin refused to appear, and said 
that he was an unworthy man, and that he did not desire such men in his court. 

Q. Who was Mr. Griffin.— A. I am not acquainted with him. As I have stated, he is 
the editor of the Nationalist, and a prominent man in the republican party. 

Q. Did he ever admit him to the bar until he got the office of register in bankruptcy for 
Mr. Worrall.—A. I do not know w r hetker he has been admitted at all or not. I understand 
his application was withdrawn from the court. I never saw’ him in court but once, I recol¬ 
lect, and then as a juror. 

By Judge Busteed : 

Q. In the matter of these affidavits which have been put in evidence, will you undertake 
to state now that I said to you I had seen those affidavits.—A. You asked me first if I was 
counsel in that case, and said that you would see those affidavits in Washington city. 

Q. Did I say I had seen them with the attorneys you mentioned in Washington city.—A. 
I think not. 

Q. Do you know whether I am a stranger to those gentlemen.—A. I cannot state as to 
that. 

Q. Have you seen them since you have been here.—A. I have not; and do not know 
them personally. 

Q. Will you state now, that on the motion for the sale of this cotton there was any evi¬ 
dence offered upon your part contradicting the evidence of the marshal, and of Jacob Wil¬ 
son, as to the cotton being in a perishable condition.—A. It is my recollection that there was. 

Q. By whom.—A. I cannot recollect, unless it was by Nunn & Thompson. I will not be 
positive about that; I state it from the memorandum I have ; otherwise I should not recol¬ 
lect it with certainty. 

By Mr. Woodbridge: 

Q. Do you rely entirely upon your memorandum for that fact.—A. I cannot recollect it 
distinctly, aside from my memorandum ; I have a general recollection of several cases of 
that sort, and whether it w’as in this case or not I do not remember distinctly. 

Q. Have you such a recollection as would enable you to swear positively to the fact, inde¬ 
pendent of your memorandum.—A. I would not positively, independent of my memorandum. 
I remember the fact of the investigation—that the question w’as as to w’hether the property 
was in a perishable condition or not—but as to that particular fact I rely solely upon my 
memorandum. 

By Judge Busteed : 

Q. Were those witnesses invariably examined under oath.—A. They were. 

Q The official statement of the marshal was never substituted for his sworn testimony.— 
A. Never, to my knowledge ; I think the statements were sworn to in each case. 

Q. Was not John Hardy marshal for the middle district as well as for the southern district 
of Alabama.—A. He was for the southern district; I cannot say, of my own knowledge, in 
regard to the middle district. 

Q. Was he not by law.—A. I suppose so ; I have never looked at the law on that subject. 

Q. On this motion, in the trial of which I gave such a scathing rebuke for 15 minutes’ 
time to the President and cabinet for their alleged conduct, do you recollect what I said of 
the President as distinct from the cabinet.—A. I do not. 

Q. Do you recollect whether 1 included all the members of the cabinet; and if so, what 
I said of the Secretary of War or of the Secretary of the Interior or of the Secretary of the 

Navy.—A. I do not. ,, n .. , 

Q. Can you remember any allusion to any member of the cabinet except Mr. McCulloch, 
as Secretary of the Treasury.—A. I remember no special allusion to any ot them except Sec¬ 
retary McCulloch. 


126 


Q. Mr. Worrall was then acting 1 as district attorney of the United States.—A. I think so. 

Q. Did you sign an application to Judge Wayne for his appointment as district attorney.— 
A. I signed an application, at the request of Judge Campbell, for Mr. Worrall to be appointed 
district attorney ; whether it was addressed to Judge Wayne or not I do not know. 

Q. Do you not know that, as a matter of law, it must have been addressed to Judge 
Wayne.—A. I never investigated that matter, and never concerned myself about it. I think 
it was before I moved to Mobile that Judge Campbell presented it to me. I remarked that 
I was not a citizen of Mobile, but he said it made no difference ; I was a member of the bar 
and a citizen of Alabama. 

Q. Did you also sign an application to Chief Justice Chase for the appointment of Mr. 
Worrall as register in bankruptcy.—A. I did ; and I will state, in connection with it, that 
I had no personal objection to Mr. Worrall; he always seemed to be a polite and an attentive 
man: but the choice seemed to be between Mr. Worrall and Mr. Griffin, and I preferred Mr. 
Worrall infinitely to Mr. Griffin for that position at that time. 

Q. Do you know John A. Cuthburt, and know his handwriting —A. I do. 

Q. Something has been said to me of the manner in which the duties of the clerk’s office 
were discharged, and the allegation is that I have been improperly connected with an improper 
discharge of its duties. In your judgment, was Judge Cuthburt fit to discharge the duties 
of the position he held under Mr. Worrall, and was there not constant complaint of the man¬ 
ner in which he discharged his duties.—A. I do not know the extent of Judge Cuthburt’s 
duties ; he seemed to discharge pretty much all the duties appertaining to Mr. Worrall’s 
office. He was old and infirm, and of course not as capable or competent as a younger man 
would be. I think he was competent in a mental point of view, but not physically. 

Q Can you state whether he was not kept there rather as a matter of consideration for his 
age and general worthiness of character than anything else.—A. I recollect one remark you 
made to me to that effect, which was after the motion made for the sale of these two lots of 
cotton; you told me, iu substance, that he was too old, and I stated, as I have now, that I 
thought he was mentally competent, but not so physically, to perform all the duties of the 
clerk. 

Q. Is the envelope I now show you endorsed in his handwriting.—A. I have no doubt 
about it. 

Q. Is the endorsement on the back of the telegram I show you—“ Received July 3, 1866. 
John A. Cuthburt”—iu his handwriting.—A. It is. 

(The telegram and endorsement were offered in evidence, but excluded by the committee.) 

Q. You say you have looked among the files and find no report of the sale of this cotton, 
and also something about the papers, generally, in the office presenting a very loose appear¬ 
ance; was it not the practice of attorneys iu Mobile, before I came there, to take original 
papers out of the clerk’s office into their own offices when they wanted to use them.— A. That 
was the practice in the State courts ; I was not practicing in the United States court before 
you came there 

Q. Are you aware of an order in my court prohibiting attorneys from taking original 
papers from the files of the court.—A. There was an order prohibiting such papers from 
being taken from the clerk’s office. 

Q. You speak of the case of 239 bales being called as of 600 and odd bales of cotton ; can 
you say who called up the case.—A. I think Mr. Smith did. I am not sure that you called 
the case by any title yourself. Mr. Smith called your attention to a case of the United States 
versus so many bales of cotton—600 and something—and you turned over the leaves of the 
docket, as if referring to the case, and asked Mr. Smith wiiat he wished to say. 

Q. From what did the judge call cases.—A. From the docket. 

Q. Who made up the docket.—A. The clerk of the court. 

Q. That docket was open and accessible to the attorneys.—A. Always so, even when it 
was on your bench. 

Q. In the discussions which arose upon various motions transferring this case of 239 bales 
from the district court of the southern district to the middle, and from the middle to the 
southern, did not Judge Busteed express frequently his difficulty in deciding as to what he 
ought to do with it.—A. There was no doubt expressed when the original order was granted, 
and afterwards 1 do not recollect your expressing any doubt. 

Q. Have you made any application to the court in respect to it since it went from the 
docket, in May, 1867.—A. I have not. 

Q. You are still an attorney in the case.—A. I am. 

Q. The charge in Mr. Smith’s budget is that I suffered it to be dropped from the business 
of the court. Motion at any time called attention to it.—A. It may have been. I was not 
in your court much. 

Q. Will you say that the judge could drop any case from court on his mere motion and 
consign it to oblivion.—A. He could not do it legally. 

Q. Could he at all, without having his attention directed to it as often as the attorneys 
chose.—A. The attorneys might call the judge’s attention to it if the judge would listen to it. 

Q. Who took these affidavits you have put on file at Washington.—A. They were sent by 
mail, or express, I do not remember which. I think I sent them myself. 

Q. And they furnished a substantial ground for the removal of Mr. Hardy as marshal.— 


127 


A. I only know that from your statement to me. I did not send them to Washington for 
that purpose. 

Q. What was the case of Withers, Adams & Co. vs. Hurtell and others, to which you 
referred as being under consideration when you came into court.—A. I know nothing of 
the case except what I gathered that day. 

Q. Did not that refer to 40 bales of cotton sent by Withers, Adams & Co. as factors, by 
a party residing at or near Montgomery. —A. I know nothing in the world of the case except 
what I heard that morning. When 1 came into the room I discovered that it was a case in 
which Withers & Co. were interested. 

Q. Do you know whether the motion was not to compel Hurtell & Hammond to give 
them 49 good bales of cotton for the 49 bales which Withers said had been substituted.—A. 
That was what I understood. 

Q. Have you seen Mr. Withers in town.—A. I have. 

Q. Have you talked with him about this case.—A. I have. 

Q. Then why do you say you know nothing about it.—A. I know nothing of my own 
knowledge. All I know is what Mr. Withers told me. 

Q. What did Mr. Withers tell yon.—A. I cannot tell you all he said, nor perhaps use his 
words. I do not remember the number of bales in question. I was asking him about the 
case and how the case came into court. He told me it was some sort of proceeding which 
he could not precisely explain, against Hurtell &. Hammond, by which he was attempting to 
obtain redress for a certain amount of cotton which, it was alleged, they had substituted by 
an inferior grade of cotton. He told me the cotton had at first been seized, and perhaps a 
larger number of bales than that in question ; that a part of it was released and the other 
part held, I think. At any rate lie did not get his cotton according to the order of the court; 
that he called Judge Busteed’s attention to it by a note, stating the fact that he had not yet 
obtained his cotton; that he afterwards saw Judge Busteed personally and had an inter¬ 
view with him on the subject, in which he asked Judge Busteed how in the world he was to 
have the order executed and get his cotton; that he, Judge Busteed, suggested to him to 
make this motion in court and he would have the cotton either paid for or delivered. He 
asked, or Judge Busteed asked, what attorney was to be employed, and the names of one or 
two were mentioned, when the judge said, employ old Boyles; he is a good old fellow and 
will attend to it for you. He did employ Boyles, and these proceedings took place upon the 
motion. 

Q. Has not Mr. Withers told you, since he has been in Washington, that the effect of 
Judge Busteed’s decision in that case was to enable him to get for his original 49 bales, 
which had been substituted, their full value.—A. He told me that the cotton had been sold 
and the proceeds paid to him, he did not tell by whom, amounting to $3,000 or $4,000 ; that 
he was in one room in the custom-house, and somebody was in another room, and that John 
Hardy passed backwards and forwards negotiating the matter until the money was paid. 
He said that Hurtell & Hammond paid him the difference between what was thus paid him 
and the proceeds of the cotton and the amount of his claim. 

Q. This is the same Hurtell & Hammond who had at their warehouse the 239 bales 
claimed by Nunn <fc Thompson.—A. The same parties. 

Q. Were these affidavits you have presented shown to John Hardy, the marshal, or 
copies of them given to him before they were sent to Washington, by you or by Robert H. 
Smith.—A. Not by me, and not by Mr. Smith, so far as I know. 

Q. You stated that the report which you made of the proceedings of the court was printed 
in the Mobile Tribune a few days afterwards ; who furnished the Tribune with that report.— 
A. That report was written by me, as I stated, for my own amusement, without any expec¬ 
tation or intention that it should ever be published ; I accidentally had it in my pocket while 
passing down our main street, called Ro^al street, and meeting the editor of the Tribune— 
with whom 1 was on friendly terms—after talking about various matters I showed him this 
memorandum which I had written in pencil on ordinary brown paper, and in the course of 
the conversation handed it to him ; he asked me if I would allow him to take it and look it 
over; I replied yes, but that it was not for publication, and that it must not be published ; 
I heard nothing further of it until the 2d of January, when I met the editor, who said that I 
would blow him up; that he had taken the responsibility of putting that report into the 
Tribune. 

Q. You did not write the prefatory remarks in the Tribune.—A. I did not, and don’t 
remember now what they were. 

Q. When did you make this clean copy you have presented here to-day.—A. I copied it 
from the Tribune before I left Mobile. 

Q. Then this is not the original memorandum which you made of tjiese proceedings in 
court.—A. No; this is a copy taken from the Tribune. 

Q. Why did you make this memorandum.—A. For my own amusement; it was not 
written in court, but written that evening, perhaps after the adjournment of court, or per¬ 
haps the next day. . . 

Q. Mr. Griffin, you say, was greatly less to be preferred by you as register in bauitruptcy 

to Mr. Worrall.—A. I preferred Mr. Worrall at that time. 

Q. Do you know whether that is the sentiment generally in relation to the two men. A. 


128 


I do not; never have discussed the question with the members of the bar ; my impression 
is that the bar preferred Mr. Worrall to Mr. Griffin. 

Q. Mr. Griffin has been the subject of a great deal of newspaper abuse in Mobile.—A. He 
has. 

Q. At the time you took these minutes were you angry at me.—A. I have never been 
angry at you for more than five or six minutes at a time. 

Q. You did not take my decision in these cases as proceeding from a corrupt mind.—A. I 
knew nothing about the other cases referred to in this memorandum; in my own case I did 
not so take it. 

Q. You have met me at dinners.—A. I have met you at two dinners, one at Mr. Ander¬ 
son’s and one at Mr. Manning’s. 

Q. On the 25th of December, before my attempted murder, did you come to my room at 
the Battle House.—A. I did, in this way: This was Christmas day; I was in my office and 
Judge Busteed in his room at the Battle House; there was some disturbance in the street by 
some drunken man, or something of the sort; I put my head out of the window and he put 
liis head out of his window and hallooed to me to come over there ; I heard about the same 
time the judge say the same thing to another person further up, who I supposed to be Judge 
McKinstry, for in a few minutes Judge McKinstry came in and asked it' I would go over 
with him ; we went over to the judge’s room; he called for champagne, and 1 took a very 
little of it. 

Q. Do you know Henry C. Semple.—A. I know him. 

Q. Have you paid anything towards the prosecution of these charges.—A. Not a cent. 

Q. Have you subscribed anything. — A. Nothing. 

Q. Have you been called upon to subscribe anything.—A. Not by any one. 

Q. Your firm defend Martin, who shot me.—A. We do. 

Q. Is there a relationship between Martin’s wife and your own.—A. Not the least in the 
world. 

Q. Have you had any conversation with William H. Smith, governor of Alabama, upon 
the subject.—A. I have not conversed with William H. Smith since 1858, upon any sub¬ 
ject ; I have not seen him. 

Q. You have spoken of Mr. Hall as an attorney ; is Mr. Hall a person who is in the habit 
of getting drunk and going about the streets followed by a crowd of boys whooping and 
yelling.—A. He is in the habit of getting drunk and appearing in the streets, sometimes 
whooping and hurraing for some one. 

Q. You spoke about the peculiarities and eccentricities of Judge Dargin ; is he in the 
habit of coming into court and puttiug his feet upon the benches, chewing tobacco and spit¬ 
ting so he can be heard within the circuit of the seats about him.—A. I have no recollection 
of seeing him put his feet up in that way; he is a tobacco chevver, and, as I have said, 
slovenly in his habits. 

Q. With the exception of the time to which you refer in your memorandum, do you know 
of any passage of unfriendliness between Judge Dargin and myself, or unkindness.—A. I 
do not remember any. 

Q. Have you attended any meeting of lawyers in Mobile at any time for the purpose of 
getting me off the bench.—A. If there has ever been a meeting of lawyers for that purpose, 
or any reference to it, I am not aware of it. 

By Mr. Smith : 

Q. Did not Mr. Withers tell you that Jacob Wilson, in the presence of Judge Busteed 
and in his room, paid him $4,000 out of this cotton money.—A. No, sir ; I do not think he did ; 
he told me he was paid $4,000 by some unknown person, and that it was in the custom¬ 
house; that he did not know who the other person was, or who paid the money. 

Q. Was that done in the building in which the court sits —A. The court is held in that 
building. 

Q. Was the judge’s room there.—A. His room had been there ; I do not know whether it 
was there at that time or not. 

Q. Did he not tell you that he informed Judge Busteed that unless the matter was set 
straight he would represent it to the government at Washington.—A. I do not recollect that 
he did; my conversation with General Withers was in the hall of the Metropolitan Hotel, 
in this city, since I have been here, and was frequently interrupted by persons passing. 

Q. Did he not tell you in that conversation that he had no idea that Hurtell &, Ham¬ 
mond substituted his cotton.—A. I asked him if he supposed that Hurtell & Hammond 
had any connection with it; he replied, “ Well, I got my money ;” that was about his reply; 
he said his money was what he was after. When I saw him in court I asked him what the 
case was; he said he did not know what it was, but that he was after his money—that Avas 
what he wanted; he seemed rather to evade the question in the hotel here as to Avhether 
Hurtell & Hammond had his money. 

Washington, January 14, 18G9. 

-Herndon recalled and further examined by Mr. Smith : 

Q. I desire you to state if the paper I hand you is a copy of J. M. Tomeny’s release of 

the 239 bales of cotton seized by him as sub-treasury agent, from the Planters’ factory*_A. 

The Matter part of it is a delivery by Mr. Tomeny himself. 





129 


By Judge Busteed: 

Q. Was a copy of this release furnished to Mr. Worrall, the district attorney, by you.— 
A. Not that I remember. 

Q. Was a copy of this furnished to the marshal —A. Not by me, that I remember. 

Q Was any communication made to Judge Busteed of this.—A. My recollection is that 
Judge Jones read the order of the Secretary of the Treasury, and this was copied as it is 
here, and I delivered it to you. 

Q. Was any written communication made by you to the courts, and notes, as here speci¬ 
fied.—A. No, sir. 

By Mr. Eldridge : 

Q. Was the letter from the Treasury Department presented to Judge Busteed previous to 
the sale of this cotton.—A. It was presented when the motion was made to sell the cotton. 
Judge Jones called the attention of the court to the fact that the matter had been submitted 
to the Secretary of the Treasury for his decision, and that there was a decision of the depart¬ 
ment ordering a release of the cotton. Judge Busteed asked him if he had that decision, 
and he said he had, and he presented it to the court. 

Q. That was at the time the motion was made to sell the cotton.—A. A part of the docu¬ 
ment was presented to the judge at that time—the whole of the document down to and 
including the release of Mr. Tomeny. My recollection is that it was as it is here 

Q. Where is that letter.—A. Judge Jones ought to have it, I presume ; he did not return 
it to me. 

Q. Was that the original.—A. I think not. 

Q. Did Judge Busteed read that in your presence.—A. I don’t think he read it, and his 
remark was that, so far from giving the case any favor in his eyes, it absolutely disentitled 
it to favor. It was simply referred to by Judge Jones why the sale ought not to be ordered, 
showing the case had been passed upon by the Treasury Department. 

The paper was offered in evidence, as follows: 


“ Treasury Department, April 26, 1866. 

“Sir : I have considered the numerous papers transmitted by you concerning your seizure 
and detention in the hands of Messrs. Nunn &, Thompson, of Mobile, of 239 bales of cotton, 
in regard to which you ask instructions. 

“The seizure was made by you on information furnished by H. C. Caulkins, who claims- 
as compensation one-fourth of what shall be tiually detained as government property. The 
facts as stated by him are as follows: 

“That the cottons under seizure are in the hands of Messrs. Nunn & Thompson as agents- 
of the Planters’ factory at Autaugaville, Alabama, which commenced winding up its affairs 
through them December I, 1865: that the informer had been instrumental in transferring to 
this factory, in January, 1865, about 390 bales of cotton from the assistant quartermaster 
of the pretended Confederate States government in payment of a debt for goods furnished, 
the contract for such payment having been made in November, 1864. That he believes 
these are the identical bales once held by the rebel authorities, and consequently subject to 
seizure as property dedicated to aid the rebellion. Messrs. Nunn & Thompson admit the 
above facts, except the identity of the detained cotton with any part of the lot bought from, 
the rebel government, and they deny its liability to seizure. They argue that the sale,, 
delivery, and full payment of value of the cotton were completed before the surrender of 
the so-called Confederate States, by which acts it became the private property of the com¬ 
pany, and that if the government thus commence to seize anything delivered by the rebel 
authorities iu payment of purchases, it will open an almost endless scene ot controversy, 
confusion, and suffering. 

“After a full examination of the affidavits submitted, I conclude it inexpedient to detain 
this cotton unless you have clear proofs of its identity with that received from the rebel 
quartermaster; if not. you are hereby authorized and instructed to release the 239 bales to 
Messrs. Nunn & Thompson on payment of all charges incurred by the government on 
account of the seizure, if any, and the execution by them of a proper, bond of indemnity. 

“Respectfully, 

* J “II. McCULLOCH, 

“ Secretary of the Treasury. 

“Treasury Department, January J3, 1869. 

“The above has been compared with the press copy in my charge, and found to be a cor- 
reel transcript. , "GEOROE L. PARKER, 

‘‘‘‘Clerk in Secretary's office. 


“Treasury Department, Ninth Agency 
“ Custom-House , Mobile , May 4, 1866. 

“In pursuance of instructions from the honorable Secretary of the Treasury, of which 
the foregoing is a copy, no additional proofs being brought to my knowledge, and a good 

B 


130 


and sufficient bond of indemnity in ibe sum of $40,000 having been executed, I hereby 
release to Messrs. Nunn & Thompson, agents lor the Antangaville factory the 239 bales 
cotton named in the foregoing letter. 

[seal.] “J. M. TOMENY, 

“ Supervising Special Agent, Treasury Department." 


By Judge Busteed: 

Q. Will you undertake to swear that that paper contains the order of 1 omeny upon it, for 
the release.—A. Yes, according to my recollection. 

Q. What was the necessity of giving Tomeny’s release for this cotton on the letter the 
Secretary of the Treasury furnished to the court.—A. The copy was not made out to the 
court, but for our information, and the court required it to be turned over to the court. It 
was not intended for the court at all. 

Q. Was the original of Tomeny’s release endorsed upon the bottom of the letter of the 
Secretary of the Treasury.—A. I think I have stated two or three times that it was not, as 
well as I recollect. 

Q. Where is the original.—A. I presume Mr. Tomeny has it. 

Q. Was the original of Tomeny’s order written upon the original letter of the Secretary, 
as it is written upon this copy.—A. I do not remember whether I ever saw it. 

Q. Then, if you never saw the original, you cannot say whether it was or was not upon 
the original.—A. No, sir. 

By Mr. Eldridge : 

Q. How do you know that is a copy, if you never saw the original.—A. I do not testify 
.as to that being a copy of the original; but here is the statement of the Secretary of ttie 
Treasury that it is a copy. It corresponds, according to my recollection, with the paper 
.furnished by Tomeny. 

Q. That was a copy.—A. Yes; but it was a paper delivered by Mr. Tomeny himself. 

Washington, D. C., January 13, 1869. 

E. McCroskey sworn and examined. v 
» By Mr. Semple : 

Question. State to the committee whether a distribution was made to you as informer, in 
the case of the United States vs. 120 bales of cotton—Josiah Morris and J. F. Johnson ; and, 
if so, state the amount, when it was paid, and all that occurred in reference to it. 

(Question objected to by Judge Busteed, and allowed by the committee.) 

Answer. Yes, sir; there was a distribution made. 1 never saw the order of distribution, and 
I do not recollect distinctly the time it occurred. The paper now shown me, in my handwrit¬ 
ing, refreshes my recollection on the subject. The distribution, I think, was for $14,245, of 
which my share was one-half. That was the amount set down as coming to me. I do not 
mean to say that I got that amount of money. What occurred in relation to it was in Mont¬ 
gomery, in the office of J. Q. Smith. I do not think he was district attorney at the time. 
As to the conversation I do not recollect what was said, except that Smith sent for me at one 
time and gave me some money. My understanding was that the money realized from the 
judgment in this case was deposited in the First National Bank of Selma, and there it 
remained. The order of distribution was given to Mr. Smith, who arranged with the mar¬ 
shal to have the payment made out of some other funds be had on band. 

Q. What particular fund was used by the marshal, or by Mr. Smith, in settling with 
you.—A. It was not money. It was the endorsement of a firm in Mobile for a check of 
$16,000, or something like that, which Mr. Smith took, and gave him the difference between 
the judgment and the amount of the paper—as he told me, 1 did not see him. 

Q. Did you see this paper.—A. Yes; I saw it. 

Q. The paper was drawn by whom ; upon whom was it drawn, and what had it been taken 
by the marshal for.—A. It was drawn by Robert W. Smith, of Mobile, and accepted by 
Y alsh, Smith & Co., of Mobile. My understanding from Smith was that it had been taken 
by the marshal in another suit 

(This statement of Mr. Smith objected to by Judge Busteed, and allowed by the com¬ 
mittee, so far as relates to the order of distribution.) 

Q. Did Mr. Smith tell you, at the time, whether the order of Robert W. Smith upon Walsh, 
Smith & Company for $16,000 or thereabouts, was taken for the sale of government property. 

(Question objected to by Judge Busteed, and objection sustained.) 

By Mr. Eldridge: 

Q. What did he tell you about this draft.—A. This was about the conversation that 
occuired with regard to it: that it was not the proceeds of that judgment in the Morris case, 
but of a judgment upon some other property, 1 think upon some real estate which Robert W. 
Smith bought at the marshal’s sale. That was my understanding. 

Q Did you take this draft yourself.—A. No, sir; Smith went to Mobile, and the draft was 
taken by him. He paid me $.>,000. It was the proceeds of some ju.lguient in another case. 


131 


Q Did Smith retain any fee for himself out of the $14,200.—A. He did retain $3,000. 

Q. At what time was this distribution made.—A. About June, 1807. 

Q. Do you remember the date of this draft.—A. No, sir; I do not. I took no notice of 
it particularly as to date. 

By Mr. Woodbkidgf,: 

Q. Did you get your pay finally in money.—A. Not all of it. There was remaining a 
balance paid to me by Robert W. Smith by a draft, which was accepted by Walsh & Smith, 
for $3,185. I got the money on that. 

Q. How much did you get in all.—A. I got this draft of $3,185. I was paid $1,160 in 
money, and another time ( I forget the exact amount) somewhere about $1,000. That is all 
I got. 

Q. Is that all you received for your moiety.—A. Yes. sir. 

Q Did you pay Lawrence Worrall anything. — A. Not out of my own hand. 

Q. Did you pay Mr. Smith anything for him—A. I paid Mr. Smith $500 for Mr. Worrall. 

Q. Did you pay B. McKinney anything.—A. I paid him $500; and on another occasion, 
I think, $1,217. 

Q. Did you pay that out of the $5,000 which you received.—A. Yes ; all out of the sums 
I have mentioned. 

Q Then the amount you actually received was $5,345 less $500 and less $1,200.—A. Yes, 
sir. 

Q Who is .T. H. Weaver.—A. J. H. Weaver is a man who was interested in tins matter 
to the extent of one-fitth. That was the agreement between him and me at the commence¬ 
ment of the suit, when we spoke, of it. 

Q. How much did he get.—A. Smith retained for him, out of the amount of $14,245, one- 
fth, or it maj r have been one-fifth after deducting the $3,000 expenses. 

Q. How much was retained by Mr. Smith—A. There was $1,005 that he said was due 
Weaver, which was also retained for him by Smith. This had no relation to the transaction 
at all. It was another arrangement. 

Q. Was this arrangement of settlement, between you and Smith, satisfactory to yon.— A. 
Yes, sir; I do not think it was exactly so ; but, at the same time, I did not say anything 
about it. 

Q. Why did you not pay your own attorney, if you employed him, instead of leaving it 
to Mr. Smith.—A. Because I did not get any money into my possession to do it with. 

Q. Why.—A. Smith saw proper to retain it himself. 

Q. Did you try to get it.—A. No; I did not try to get it or ever ask a receipt for it. 

Q. Did you have any intercourse with Judge Busteed upon this subject.—A. Not at all. 
I never spoke to him, except once, when we had some conversation at Stauwood’s; but not 
in reference to this matter. 

Q. Did you ever have ai y talk with Worrall.—A. Never with him, either. I left it all in 
Mr. Smith’s hands. 

Q. Did you know of the suit when it was first commenced.—A. Yes. 

Q Did you ask to have it commenced.—A. Yes. I was not very much interested in it, 
however, at the time. It went on for some time, when the party who was most in interest 
moved to Texas and left it. 

Q. Then you were not the original informer.—A. No, sir ; the case first came up upon an 
action for trover, as I understood it, and was non-suited. Then a libel of information was 
filed in the case, and I became interested in it. 

Q How did you become interested.—A. By giving bonds as the law required ; just by 
common consent. 

Q. Who was the man originally interested in it.—A. The original man, who got the mat¬ 
ter up, was John F. Cummins. 

Q. Who was he.—A. I have no idea. He went to Texas. He was a partner in the ware¬ 
house of J. F. Johnson & Company, in which these 130 bales of cotton were stored. 

Q. What bonds did you give in the case —A. I simply gave bonds to secure the costs. 

Q. Where were they filed.—A. With the district attorney. 

Q. When did you give bonds.—A. I do not recollect exactly ; some time in 1866. 

Q. Was it after the trover suit, as you call it, was dismissed.—A. Yes, sir. 

Q. Was that the first you had to do with the case.—A. It was the first, formally. I 
had had a verbal understanding that I would take an interest in it. 

Q. Who was that understanding with.—A. With Mr. Cummins. 

Q. Did you give Cummins anything to leave it with you.—A. Yes; I loaned him the 
money and he just went off. I do not recollect how much I gave him. He said he was 
going away and would leave the matter with me. 

Q. Did you give him as much as $1,000.—A. No ; I think not. It was in small sums. 
He would come in and ask me for money. I cannot say w r hether I gave him as much as 
$300 or not. 

Q. What was Cummins’s business.—A. He was not in any regular business that I know 
of after the war ended He was a partner in this warehouse that was burned up, and it 
broke him, and he and his family went to Texas in 1866. 


132 


Q. Who first suggested the idea of your giving a bond.—A. He did. 

Q. When did you first have anything to do with Smith about it.—A. When I first spoke 
to Smith about it, I gave the bond. 

Q. Did you pretend that you were the informer.—A. Yes ; that was the arrangement with 
Cummins. 

Q. You were not, in point of fact.—A. Yes; I suppose I was, so tar as the law is con¬ 
cerned. 

Q. Did you have any communication with Smith until after the trover suit.—A. I did ; 
I talked with him about it. 

Q. Did you not say that you had no interest in it, at first.—A. If I had at first, it was an 
understanding that I was to have an interest with Cummins. 

Q. Was it because of any information you had given the district attorney.—A. Not at all. 

Q. Then your interest was simply because you had loaned some money to Cummins, to 
secure which you appeared in this case as informer.—A. That was all. He just turned it 
over to me, and he had nothing further to do with it. 

Q. Do you know whether Cummins ever gave any information to Smiili.—A. Not of my 
own knowledge. 

Q. Did you pay Smith any money.—A. No ; except that he settled upon the basis of 
deducting $3,000 for his own services in the case. 

Q. Had you employed him.—A. He was district attorney in the case, and had the 
arrangements to make. The whole thing was in his hands. I do not think I ever made any 
contract with him at all. 

Q. Did you make any objections to these payments.—No, sir ; I did not. 

Q. And all of these payments came out of your moiety, out of the $14,245.—A. Yes. 

By Mr. Semple : 

Q. How did your moiety come to be $14,245. Was there any amount deducted from the 
$30,000 judgment.—A. The draft of 16,000 and odd dollars had nothing to do with the judg¬ 
ment in the Morris case. 

Q. How much did you understand the entire judgment was.—A. $30,000. 

By Mr. Woodbridge: 

Q. What proportion of the judgment did you suppose you were entitled to as informer in the 
ca.-e.—A. One-half, as I understood. 

Q. And did you understand that $14,245 was the amount that Avas to come to you.—A. 

I did. 

Q. How did you arrive at that amount, if $30,000 Avas the judgment, of which you were 
entitled to one-half.—A. They said to me, there had been some matters deducted, in the 
shape of marshal’s fees and some other costs, I don’t know what. This brought the judg¬ 
ment down somewhat in amount. 

Q. Did you understand the amount paid to Worrall, as clerk’s fees.—A. No, sir. He 
was not employed as clerk in the middle district. 

Q. Was he employed by you.—A. No, sir. Mr. Smith employed him, as he told me, and 
I did not object to it. I left the whole matter in his hands. 

By Mr. Semple: 

Q. Were you present at the first trial, of Avliich you have spoken as the trover suit.—A. 
1 was in court at different times. 

Q. Did you render any assistance in that. —A. No ; I did not do much. 

Q. Do you know whether there were any witnesses examined at the last suit, Avho Avere 
not exa uined at the first one.—A. I cannot answer as to that. I know some Avituesses were 
examined at the last suit who were examined at the first. 

Q 1 understand you to say that, Mr. Smith retained the exact sum of $1,551 14 ; what 
was that retained for.—A. Weaver had an interest of one-fifth in the case, and Smith asked 
me to agree to let him have that amount. He became interested in it about the time the 
suit commenced by a libel of infoimation. 

By Mr. Woodbridge: 

Q. Who Avas Weaver —A. He Avas ordinary man, living there. He had no connection 
with the court. 1 know him very well. He speculates atid travels about a good deal. The 
last time I knew him he was speculating in cotton. I gave him one-fifth interest for his 
services in helping to conduct the suit. 

Q. What services did he render; he Avas not a laAvyer. —A. I do not know what services 
he rendered. 

Q, Why did you, upon the mere motion of Mr. Smith, give him one-fifth interest.—A. I 
just allowed Smith to do whatever he thought proper in the matter. That Avas the only 
lea son 1 had for it. 

Q. Aie >ou not in the habit of looking after your own interests in business matters.—A. 
This whs a matter in which the more I looked at it the rvorse it looked. 

Q. Did Smith know you received your information from Cummins.—A. Yes ; I told him 
afterwards that my interest came from Cummins. 

Q. Did you tell him at the time. —A. 1 am not certain. I had spoken to him on many 
different occasions in regard to the matter. 


133 


By Mr. Sempee: 

Q. What claim did Weaver make, or did Smith make for him.—A. I never saw any 
paper to that effect, but Smith told me that Weaver was in debt to him in a tolerably large 
sum of money—about $5,000. h 

Q. Did Worrall do anything in the case, or was he present in the court at any time 
during the trial.—A. I never saw him or heard him say anything about it. He was there 
at the term of court at which the case was tried. 

Q. ^Out of the $5,000 you got from Smith, you paid $500 to McKinney at one time and 
$1,217 at another, as you state; how much did you receive for yourself.—A. About$3,633; 
that is about all I got for my interest. 

Q. Was Smith at that time district attorney. —A. He was at the time of the prosecution 
of the libel. He was not at the time of our settlement. 

Q. Was he at the time he rendered his services in making this arrangement for you. — 
A. He rendered services in the case up to the very close, and my impression is that the 
charge of $3,000 was for the whole amount of services, from the beginning until these 
amounts were paid. 

Q. When did you first get him to look after your interests. —A. When the suit first com¬ 
menced. 

Q. That was the time you retained him.—A. He was the only one I intended to retain. 
But through him I got into this arrangement with Weaver and McKinney. 

Q. When did you first learn about this cotton.—A. I cannot answer particularly. It 
was some time in the early part of 1866. I knew of it all the time the trover suit was 
going on. 

Q. Were you intimate with Cummins.—A. Yes, sir. 

Q. Was he engaged in behalf of the government in any way. —A. No, sir. 

By Judge Busteed: 

Q. Where do you reside. —A. At Knoxville, Tennessee. 

Q. What business are you in. —A..In the mercantile business, on K street, in that city. 

Q. Did you ever speak to Judge Busteed on this subject in your life. —A. No, never. 

Q. How often have you seen him, before to-day, in all your life.—A. I have seen him 
in court and on the streets ; it would be a hard matter to tell how often. I do not think I 
ever had any personal acquaintance, except meeting him at Stanwood’s, in the month of 
April, 1867, when I went down there after a horse that belonged to Smith, and at the same 
timp delivered the judge a letter, but about which he said nothing, and gave me no message 
to take back. 

Q. Have you ever had any conversation with Worrall on this subject.—A. I do not 
recollect ever speaking to him about it. 

Q. Did Smith claim, in the settlement of this matter, any money as belonging to him. — 
A. No, sir; not more than I have said. 

Washington, D. C., January 14, 1869. 

Samuel F. Rice sworn by Mr. Wilson and examined. 

By Mr. Semple : 

Question. State to the committee any fact known to you tending to support the allegations of 
the third specification of the first charge in relation to the 120-bales-of-cotton suit, and to the 
fact, as alleged, that $5,000. or $5,500, was paid by Morris to Jacob Wilson upon an agreement 
for the settlement of said judgment.—Answer. There were two suits in reference to the 120 bales 
of cotton against Josiah Morris and J. F. Johuson. The first was submitted to a jury, as an 
action of trover, at the May term, 1866, of the United States court, at Montgomery. A juror 
was withdrawn in that case at the end of the trial, and it was. at that term, I think, left on 
the docket in that condition and afterwards dismissed, and before the succeeding November 
term an information was filed and a second suit thus commenced in reference to the same 120 
bales, which was tried at the November term of 1866, and a decree rendered therein, accord¬ 
ing to my best recollection, on the 17th of December, 1866. Many exceptions were taken on 
the trial of the second suit, and after the decree was rendered I called on Judge Busteed, (I 
having been one of the counsel for the defence,) to allow me to have the use of a book 
which he kept, and in which he made memoranda as to what occurred on the trial, for the 
purpose of drawing a bill of exceptions by that and as near in conformity to it as I thought 
the facts would warrant. He let me have the book, and at every interval, when not engaged 
in other cases in his court, I was drawing a bill of exceptions. But it was a lengthy one 
with a good deal of work in it. I understood Judge Busteed would adjourn his court on the 
Thursday following. I was, therefore, doing all I could, consistently with other duties, to 
get the bill ready to tender it to him in court before he did adjourn. Major Arnold had a 
party on hand, to which I was invited, and Judge Busteed also, as he told me. He asked 
me if I was going. I replied that I was not, and gave as the only reason that I was pre¬ 
paring this bill of exceptions; that I could finish it on the night on which.the party was to 
come off; that I understood he was going to adjourn on Thursday and I wanted to present 
it before. He told me he was anxious I should go, and that if I would go to Major Arnold’s 


134 


that night my client should suffer no prejudice whatever; that he did not expect to adjourn 
before Saturday, and at all events I need not have any doubt about getting a full and fair 
hill of exceptions and my client suffering no prejudice whatever. Upon that I concluded to 
go, and did go. 1 went on the belief of two facts : that he would not adjourn before Satur¬ 
day, and that if he did my client would be fully protected. As I was relying upon this I did 
not press the preparation of the bill as I had been doing. On Thursday, 1 think, the day or 
the second day after the party, he adjourned his court. When the adjournment came it sur¬ 
prised me very greatly. 

By Mr. Eldridge : 

Q. When did the adjournment take place.—A. I think it was on Thursday. I was 
amazed when I heard the adjournment announced I was in court at the time I repaired 
to my office and devoted myself to finishing the bill industriously, and after it was finished I 
went to look after Judge Busteed to present it to him. I found him late at night and pre¬ 
sented it to him, but he did not sign it. He said he must go to Mobile that night; that he 
had some other things to attend to ; it was not long before the cars would leave. I reminded 
Judge Busteed of what had passed and urged him to comply with what I understood to be 
an absolute obligation. He made no refusal whatever to sign the bill, but said he did not 
have time—he must go. I urged upon the judge that I thought he ought to stay till that mat¬ 
ter was disposed of; that the matter was a large one; that I had relied upon his promise; 
that it put my client in a most disagreeable position and myself in a most disagreeable posi¬ 
tion towards my client; that if it had not been for his promise I would have tendered the 
bill in open court. I was urgent, and Mr. Worrall, who was present and who was going to 
Mobile with the judge, said he would take occasion to suggest it to the judge if he happened 
to forget it. The matter passed off in that way. I think Judge Busteed took the bill. He 
or Mr! Worrall did. I expected to hear that the bill had been examined as soon as the judge 
g t to Mobile, and either sent back or reasons given for not sending it back. Having heard 
nothing I went to Mobile during the Christmas holidays, between the 25th of December, 
1866, and the first of January, 1867, to see about it. I went to Judge Busteed’s room. 
Judge Busteed treated me with great politeness, but told me that from what he had heard 
from some of the lawyers he doubted whether he could sign a bill at all, as it was not ten¬ 
dered in term time under any agreement entered into between the attorneys that a bill might 
be signed after term time. That was the first time I had heard anything about that. I told 
him that it was true that that was according to the statute of our State in relation to our State 
courts ; but I told him further, that, although it was a positive statute, in practice it was o^ite 
common for bills to be signed long after, when not tendered in term time, when there was no 
written agreement between counsel, but a mere verbal understanding that at any convenient 
time after, the bill might be signed. My recollection is that was all the objection he made, and 
I understood that he would be willing to sign the bill if he had a right to do it. I had no 
doubt of that myself. It was my opinion that that statute did not govern the United States 
courts in Alabama, but was simply applicable to the State courts—purely a State regulation. 
I told him so. 

Q. What had been the practice in the United States district court.—A. I never had known 
the United States courts to follow that practice at all. I know that we agree verbally that 
the counsel who prepares a bill of exceptions shall have the same right as if be had prepared 
the LhII in term time. I am not aware of any rule of the United States court on the subject. 
If there be one I have forgotten it. I returned to Montgomery without getting the bill and 
reported to my client that the bill was not signed, and substantially what had passed. Mor¬ 
ris & Johnson were my clients, but Morris was the man to whom I reported and to whom I 
refer when 1 speak of my client. Alter my return, and after Judge Busteed came back to 
Montgomery, Mr. Morris, Mr. J. Q. Smith, who had been district attorney. Judge Busteed, 
and myself were together in Smith’s office, or room. I do not recollect whether any other 
persons were present, and the matter of this case was mentioned. Papers had been 'pre¬ 
pared with a view of taking an appeal, the blank forms of which had been carried by Mr. 
Morris when he went to Mobile. These were produced on that occasion. I think Judge 
Busteed had them in his valise, or trunk. 

Q. Do you refer to the bill of exceptions.—A. No; to an appeal bond, citations and other 
papers. 

Q. Was that under the supposition that it might be a case of admiralty.—A. Yes. I may 
as well state, that within the ten days after this decree was rendered in December, 18(56, and 
when 1 had no doubt about getting a full and fair bill of exceptions, Judge Chilton, who 
was in consultation with me in the case, suggested that a writ of error might lie, and within 
the ten days we filed the writ of error, citation and writ of error bond. We first took a writ 
of error and complied with the law in that regard ; but Judge Busteed held that a writ of 
error would not lie ; and it was after this, and within the ten days, that these appeal papers 
-uere prepared of which I spoke, and which Mr. Morris took to Mobile in January, 1867, 
and which Judge Busteed had in his possession when he came, and were produced on this 
occasion when Mr. Morris, Mr. Smith, Judge Busteed, and myself were together. I recol¬ 
lect this more distinctly from the fact that Judge Busteed had lost the key of his valise and 
had to break it open. When the papers were produced there was a good deal of conversa¬ 
tion, and I will give the committee the best recollection I can of it, in substance. 


135 


Q. Give the language of Judge Busteed as nearly as you can.—A. After showing the 
papers to Mr. Smith, .Judge Busteed asked him if he was willing that he should sign the 
papers and approve the bond and citation, and stay the execution and the collection Mr 
Smith objected decidedly and very impressively. There was a good deal of talk; Judge’ 
Busteed said he had to go on to the north—perhaps New York—but should not be gone lonk 
After talking a long time and finding Mr. Smith would not consent to anythin^, Judo-e Bus¬ 
teed remarked, in substance, “That is all I can do now.” He said, “I dou’t see° that I 
can do any more until 1 return ; but I will take up this matter when I come back.” I said, 
playfully, accidents sometimes happen, and you may be bursted before you get back. The 
conversation was quite friendly and familiar between us. Said I, “ Sign these papers at all 
events, for safety; sign them on this condition, that, if you never come back to Alabama, 
the papers may be turned over to the clerk, as if there were no condition to your approval; 
if you do however, return, you will have the same power that you now have, and they will 
be delivered back to your control.” Mr. Smith objected to that, I think. Judge Busteed 
said, “ I will do that.” He signed the papers, and asked Mr. Smith if he would not keep 
them. 1 

By Judge Busteed: 

Q. In his safe.—A. I am going on to tell. Mv recollection is, that Judge Busteed asked 
Mr. Smith to keep them for him. He declined, saying he did not want anything to do with 
them. Judge Busteed said, “I reckon, if I put them in your safe you will allow them to 
remain as my papers till I return ” Mr. Smith said, “ Certainly I will.” That was done. 
Judge Busteed was not gone long, and when Mr. Morris told me he had returned, we set 
out to hunt him about town. 

Q. Where.—A. We went to the clerk’s office, and to other places; we did not find him. I 
will, with the permission of the committee, state one fact that I forgot to mention in its 
proper connection. When we were together in that room, before Judge Busteed went north, 
he called Mr. Hardy in and told him to do nothing upon that execution until he received 
further orders front the judge himself. After the judge returned, Mr. Morris said he under¬ 
stood that the judge was at Mr. Stanwood’s plantation, and told me he wanted me to go, on 
certain business alone, in reference to this matter. I went at his request. I arrived at Mr. 
Stanwood’s some time after dark, or night, and stated my business to Judge Busteed, which 
was to stop this collection of money. At first the judge said very positively he could not do 
anything; but I urged matters which had passed between us in reference to the case, and 
continued to press the matter upon him until he agreed to stay the collection temporarily till 
further orders, and did so. I left late at night, and got back to Montgomery the next morn 
ing, carrying this stay order with me. 

Q. Do you know how long it was stayed.—A. My impression is ‘‘ until further orders ” 
I delivered it to Mr. Morris, and I took it for granted he delivered it to the marshal. After 
that the collection was enforced by execution out of Mr. Morris. I was present and saw him 
pay the whole amount. In March or April I think the payment was made. Nothing was 
said by Mr. Morris that I recollect about the payment of the $5,500 at that time. 

By Mr. Eldridge : 

Q. Do you know anything of that from Judge Busteed, the payment of the $5,000 or 
$5,500.—A. The night [ was at Mr. Stanvvood’s Judge Busteed spoke of Mr. Morris having 
paid Jacob Wilson $5,C00 or $5,500. 

Q. What did he say.—I will state that Judge Busteed is a mason and so am I. He said 
some things to me that I understood were intrusted to me as such. I do not know that that 
was material. I will ask the committee not to force me to speak about those things. I do 
not know that they will have any bearing, but I will feel under great obligation not to be 
compelled to speak of them unless Judge Busteed requests it. 

Judge Busteed. I absolve you from all obligations of confidence. 

WITNESS. As I said, Judge Busteed spoke very decidedly that he never could do anything 
more. 1 urged it, and in the course of my urging it he spoke about what Morris had done; 
that he had gone to Mobile on that trip and attempted to bribe him by paying this money to 
Jacob Wilson, and he spoke about prosecuting Morris for bribery, or an attempt to bribe. I 
talked over that matter at great length, and I recollect that I did not have any idea that 
Morris had a purpose to bribe at all; I was satisfied in my own mind that Morris’s under¬ 
standing of the matter was to effect a settlement of the case. That was what Morris sup¬ 
posed he had done, as I believed ; that he had effected a settlement by paying this. 

Q. What did you state to Judge Busteed were Morris’s views, and what was his reply.— 
A. I do not know that I stated that in Morris’s words, but I know I had this in my mind, 
not to violate professional obligations. 

Q. State the full conversation between Judge Busteed and yourself about that $5,000.— 
A. It was a long conversation. He spoke about Morris having attempted to bribe him by 
putting this money in the hands of Jacob Wilson. I say I thought Morris simply meant to 
buy his peace by making a payment to the extent of what he had received for the cotton. 
His idea was that was a settlement, a lawful and just settlement of the case, and he would 
rather do that than to prosecute the matter any further. 

Q. What was the judge’s reply —A. He dissented entirely; said he did not understand it 
in that way, but insisted that Morris was guilty. 


136 


Q. Did you, in that conversation, say anything to Judge Busteed about what service 
Morris expected of him, in the way of settling this judgment.—A. I do not recollect with dis¬ 
tinctness about it; but I gathered from the general run of his conversation that he consid¬ 
ered the matter as substantially settled. I thought I ought not to let Judge Busteed know 
what Morris had said to me; I aimed to not do that. I wanted to make the impression 
Morris had made on me, as my own views of the matter generally. 1 put it rather in the 
form of my conclusions and views, from what I knew of Morris as a man, and what I had 
heard him say in general. 

Q. Did you tell Judge Busteed that Morris expected this $5,000 to settle the suit.—A. .1 
told him I was satisfied that Morris was not guilty of any bribery ; that I was satisfied his 
view was that the amount paid was paid as a compromise, to end the case. 

Q. What did the judge say to that.—A. He gave the view that Morris was a bad man, and 
his real intent and purpose was bad, and spoke of him in that way. 

Q. Did the judge or you have any conversation about the offer that the judge made, or you 
made, to compromise or settle this matter.—A. I never put anything specific at the judge on 
that; but I put it in a general way, in view of what had passed. I said, “Judge, you know 
better than I do what has passed, especially in view of your own action ; and, looking at jt 
all, I think it rather hard to enforce the payment of this money out of Morris, and that it 
ought to be stopped.” 

Q. What did the judge say to that.—A. He at first refused ; but in the end lie gave me a 
stay, which I carried back to Montgomery. 

Q. Was that based upon any affidavits.—A. I do not recollect. 

Q. Was there any other showing than you have stated.—A. None that I remember. 

Q. You said you were present when the money was paid on the judgment.— A. Yes, sir. 

Q. Was the $5,U00 or $5,500 spoken of or allowed on the judgment.—A. No, sir. 

Q. Why not.—A. The marshal said he had the execution, and that the whole must be paid. 

Q. What marshal was it.—A. John Hardy. 

Q. Was the $5,000 referred to.—A. No, 1 did not hear it referred to. 

Q. Did you understand that that money was a proper sum to be applied on the judgment.— 
A. No, sir; I did not understand that the marshal would have authority to allow it. 

Q. Why not.—A. Suppose Morris had paid it to any stranger ? 

Q. But this was not a stranger; it was the deputy marshal was it not.—A. I told Mr. 
Morris he could not avail himself of that, in any way in the world pro tanto; but his remedy 
was simply a personal one against Jacob Wilson or Judge Busteed. I had no idea, as a 
lawyer, that he had any other remedy. If Wilson was then a deputy marshal I did not know 
it, and did not so regard him in that matter. 

Q. But if the transaction had been honest, and there had been no disposition to bribe any¬ 
body, would not that have been a proper subject to speak of by the marshal, that it might 
be allowed.—A. The marshal is a mere ministerial officer, and a payment to Jacob Wilson, 
or to Judge Busteed, although a judge of the court, upon an execution which was in the 
marshal’s hands, and which had never been in the bauds of Jacob Wilson or Judge Busteed, 
could not be legally treated as payment to the marshal. 

Q. Did you try, in fact, to have it applied.—A. No, sir; for I was satisfied the law was 
against it. 

Q Have you any doubt that the marshal could have applied it if he saw fit.—A. But he 
would have put himself in Jacob Wilson’s shoes, and made himself liable for the amount to 
the plaintiff. 

Q. But why did not you as a matter of fact, instead of a matter of law, see whether it 
could be applied on it.—A. I was so well satisfied that the law would not tolerate it that I 
did not do it. 

. Q. Did you understand that money to be applied in any other payment than to satisfy that 
demand.—A. My understanding from Morris was that it was paid for no other purpose by 
him than to effect a settlement and compromise of the entire case. 

Q. Then what should make you doubt that when they came to pay the judgment in full, 
that they would be ready to apply that on the judgment, if it was all fair and honest.—A. I 
had seen Judge Busteed at Stanwood’s in the mean time, when I got that stay. As I told 
the committee, Judge Busteed denied that he ever had the money at all, and charged Morris 
with an attempt to bribe him, and spoke of prosecuting him. When Mr. Morris spoke of 
suing Judge Busteed, I advised him not to do it. 

Q. Did you advise him that the time had not yet come when it was proper or best to call 
for that money.—A. 1 did; I had several reasons for doing it; one of which was that I had 
not got a bill of exceptions in the case. 

Q Did you think that if you allowed that $5,000 you would thereby get the bill of ex¬ 
ceptions.—A. I thought we were, to a considerable extent, in the power of Judge Busteed 
in the matter of the bill of exceptions, and I did not want to irritate or exasperate him any 
more. I thought a mild course was better to get what I considered justice to Mr. Morris than 
to excite any antagonism of Judge Busteed against Mr. Morris, or to heighten it by a suit 
against either Jacob Wilson or Judge Busteed to recover the money back. 

Q. Did you know Jacob Wilson at the time.—A. I had seen him before. 

Q. Where.—A. In Montgomery and at Mobile. 


137 


Q. At what places. — A. I think at Mobile, at the judge’s room, and at Montgomery about 
the court-room. He is one of the employes there while the court is in session. The first 
time I ever saw him was with Judge Busteed; I did not know his name, but being a singu¬ 
lar looking man I inquired who lie was. 

Q. Did you not know that he had been deputy marshal.—A. I did not know it. 

Q. Did you know of his acting as marshal.—A. I knew of his acting as crier or auctioneer 
at some sales for Mr. Hardy ; but I state to the committee distinctly that I did not know him 
as marshal or recognize him as marshal. 

By Mr. Semple: 

Q. Was anything said between you and Judge Busteed about an order for the distribution 
of the funds to be collected out of Morris when you were in Mobile, in December, 1866, 
or January, 1867. — A. Yes, I think so; I think Judge Busteed said there would be no dis¬ 
tribution of the fund when I spoke of the bill of exceptions. I am not certain but there was 
a letter by the judge to that effect; perhaps I may be mistaken in that. He has stated either 
verbally or in writing to me, in January, February, or March, perhaps in two of those 
months, that he would not distribute, or had not made an order of distribution. I feel cer¬ 
tain of that. 

Q. Do you know what Judge Busteed’s practice has been in relation to signing bills of 
exceptions after the adjournment of the court, since January, 1867.—A. Well, before Janu¬ 
ary, 1867, I do not recollect of his signing any bills of exception; since January, 1867, I 
know of his signing several, and out of term time. 

Q. Were you counsel in those cases, or any of them.—A. I was. 

Q. Was there any agreement in writing that they should be signed out of term time.—A. 
None; he signed a bill of exceptions in this 1*20 bale case long after the adjournment. 

By Judge Busteed: 

Q. Did you come to me. — A. I did not, because you know we were not then on speaking 
terms: I saw it, and I know* your handwriting. 

By Mr. Semple : 

Q. You saw a bill of exceptions signed by him, you say.—A. Yes; and I went to get it 
at Mobile; but I did not speak to Judge Busteed, although I saw him in the hotel; Judge 
Chilnton and he were on good terms, and Judge Chiluton went to him and got the bill; I saw 
that bill, and I saw some bills in other cases signed by him afterwards. 

Q. Was any endorsement made on the package you spoke of; and if so, did he read it out, or 
say what it was—the package in which the papeis were put, to which you referred when you 
spoke of the interview in Smith’s office.—A. 1 think there was, but I cannot undertake to 
state ; I have no recollection of that. 

Q. Was any remark made by Morris to Judge Busteed with reference to what had passed 
between them in Mobile in that conversation, or any allusion to it; and if so, what was it — 
A. I do not recollect that any distinct remark by Morris to Judge Busteed was made ; but I 
do recollect that Mr. Morris had commenced, and was, as I thought, about to utter fully 
what I understood to be an allusion to that matter, but I stopped him. You see he had made 
the statement to me before, aud I prevented Morris from speaking fully. I thought it was 
better not to press the matter, for I thought Judge Busteed was really doing the best for 
Morris in putting it off at that time ; because it was plain, as I thought, that Smith was in 
earnest, aud my impression was that we could not at that time do anything, however anxious 
we were, without encountering the irreconcilable opposition of the district attorney, Smith. 

Q. Was there anything in what he said that could have led Judge Busteed to suppose he 
was going to speak of what had pa-sed between you aud him.—A. Judge had the same op¬ 
portunity that I had; but, of course, I cannot judge for him. 

Q. Did Judge Busteed make any reply to Morris, or say anything immedia'ely after Mor¬ 
ris commenced or made this attempt to commence which you have described ; it so, what 
•was it.—A. I cannot say that I have any recollection of that; I know—perhaps it was then— 
that Judge Busieed stated, and very significantly, as it impressed me: “ I cannot do any¬ 
thing more now.” That was after he had ordered Hardy not to collect until further orders; 
and then he talked over the matter about the papers, Smith objecting all the time. 

By Mr. Eldridge: 

Q. How was that said by the judge —A. The impression made on my mind was that the 
judge was coming up to fulfil the engagement made with him. 

q! I ask what was Judge Busteed’s manner when he said that.—A. It was in the emphasis 
and look and tone. He said, as near as I can give you the idea, “ I cannot do anything more 
for you now ; I will have to take the matter up again when I return.” 

By Mr. Semple: 

Q. Was there any gesture used in making that statement.—A. I don’t recollect; the judge, 
like myself, makes so many gestures I cannot tell. 

Q. How came you to go to Smith’s room at that time; were you sent for by Judge Bus¬ 
teed, or did you go there of your own motion.—A. I cannot answer positively. 


Q. After that time you went to Stanwood's plantation: did you hear of or see Jacob Wil 
son about Judge Busteed’s; and if so, where.—A 1 think so, but I could not locate the 
t;me and place. 1 have seen Wilson with Judge Busteed frequently, and it was a matter 
that would make no impression in any way. 

Q. Have you examined the records in the case of the United States against Morris & 
Johnson, in the clerk’s office in Montgomery—the case of the 120 bales of cotton.—A. I have 
seen a part, but not the whole. 

Q. Do you know anything of the distribution of the funds collected from Morris in the 
case of the United States against the 120 bales of cotton; and if so, tell the committee what 
you know about it.—A. I have no knowledge on that subject; I heard something about it. 

Q. From whom. — A. At the clerk’s office, I think. I got a notice purporting to come from 
Judge Busteed, I think, in tlie summer of 1867—a written notice—that he was about to pro¬ 
ceed to the matter of distribution. About that time we did not have any communication 
with each other, and I did not go; I got Judge Chilton to go. That was the first time I 
heard anything about any intention of carrying the idea of distributing into effect. 

Q. Will you please state to the committee anything in the bearing and deportment of the 
judge in court, or any facts within your own knowledge, tendiug to show an arbitrary usurp¬ 
ation of power by him, with a corrupt disposition, in the administration of his office.—A. It 
would be difficult, if not impossible, to state all the acts which are possibly embraced by that 
question, which have occurred within my own knowledge. I recollect—to give the cora- 
mit'ee some intimation—that in the trial of the 120 bales of cotton, in the May term of 1866, 
the trial continued into the third day; I was managing the defence; my best recollection is 
that Judge Busteed, throughout the trial, denied me the right, or what I believed to be a 
right, in offering testimony or asking a question of a witness the relevancy of which by itself 
might not appear, to state the connection or the connecting facts which I offered with the 
question that I put; in that way he would not allow me to explain, or to even state that I 
offered to prove by a witness this, that, or the other fact. 

By Mr. Eldridge: 

Q Would not allow you to state it to him.—A. He would not. Said he, “ Take your 
seat,” sternly and repeatedly, and told me, “Put your question.” I would get up to state 
if, and beg to state it. “Take your seat; put your question.” I can state to the committee 
that I never have undergone so much personal mortification and suffering, either in or out of 
a court of justice, as I did on that trial. His rule was to allow but one speech on a side, and 
to make the defendant’s counsel speak first, and the plaintiff the concluding speech to the 
jury. While I was making my speech to the jury, I recollect Judge Busteed, from the 
beucb, in a manner that I cannot describe, but with emphasis and energy—said in substance, 
a id I think it is very nigh the language—right iu the presence of the jury, stopped me by 
saying, “ It is proved in this case that your clients took the cotton furtively, which was not 
their property.” I stopped and inquired if the right of trial by jury was recognized in his 
court; and it it was, of what avail it would be if it was interfered with in that way by the 
presiding judge; and it went ou in that way, though I cannot repeat it. 

Judge Busteed. O, yes; you must repeat it. 

The Witness. I could not ; I was a good deal excited. That was the case, as I stated 
it; and it ended by allowing the district attorney to withdraw a juror at the end of the trial. 

By Mr. Eldridge : 

Q. From whom did the suggestion of the withdrawal of a juror come.—A. I think from 
Judge Busteed, on the bench. I will state, also, that I have known Judge Buste* d, more 
than once, when objection was made by the district attorney to the question, to say, “ I over¬ 
rule your objection in that way, but if you will object to a certain part of the question,” 
pointing out the part., “I will sustain that.” The district attorney would make it, and the 
judge would say, “The objection is sustained ” I have seen and heard the judge make sug¬ 
gestions to the district attorney in such cases as that. 

Q. What district attorney do you speak of.—A. J. Q. Smith. I do not recollect of his 
making such suggestions to Judge Bugbee, the present district attorney. 

By Mr. Semple: 

Q. Do you know ot any other fact —A. I could give other instances. 

Judge Busteed. Give them—give them all; I dou’t ask you to hold back one, for me. 

The Witness. In the trial of the 192-bales-of-cotton case, 1 think, I sought to prove some 
matter or put a question to a witness. Objection was made, as I put it; while the same 
matter was put by the other side and the facts allowed to be drawn out. 

By Mr. Eldridge: 

Q. Was not that a case where it might be proper for one side to ask the question and 
improper for the other side.—A. My opinion, as a lawyer, is that it was not I think the 
committee will find something of that in the bill of exceptions in the case of the 192 bales of 
cotton ; but the bills of exceptions that are signed are not all of them full; they do not state 
all the rulings of the judge. Tne bill of exceptions in the case of the 120 bales of cotton, 
I will state, is neither full nor fair, in my opinion as a lawyer; and that is the case where I 
prepared the bill with his own book before me. He had kindly lent me his own book. 


139 


Q. DM you copy his own book, as he had prepared it.—A. I did not copy it; I conformed 
to it, except where I knew he had clearly omitted something well known to the attorneys. 

Q. Did he refuse to allow you, in your bill, any exception that he had minuted in his 
book.—A. My best recollection is that if his book were produced and compared with that 
bill, it will show that there were rulings made by him that were not in that book. 

Q. My question is, did you put into that bill of exceptions, taken from Judge' Busteed’s 
book, anything which was stricken out.—A. I do not think auy part was stricken out of the 
bill which the judge signed. Judge Chilton had found out what he could get allowed, and 
we had a new bill prepared accordingly ; that was the one which was signed ; I do not know 
what has become of the bill prepared by me in the first instance. 

By Mr. SEMPLE: 

Q. Had you any exception of Judge Busteed’s, noted as having been taken, which was 
not inserted in the bill of exceptions.—A. I cannot undertake to answer. 

Q. Have you anything further to say in reply to my general question.—A. It has struck 
me that in the trial of some cases Judge Busteed is as unexceptionable in his deportment as 
any judge I have seen on the bench; in other cases he is the most overbearing, offensive, 
insulting judge I ever saw on the bench, and I have been practicing and presiding in the courts 
of Alabama, and the United States courts also, for more than 45 years. 

Q. What witnesses were examined on the trial of the trover case, other than those who 
were examined on the trial against the 120 bales of cotton.—A. None that I recollect. 

Q. Do you recollect whether the material facts in the one case were the same as in the 
other, as proved.—A. I think they were the same, especially on the part of the United States. 
I think that perhaps there was more testimony on the part of the defence in the last or second 
case than in the other. 

Q. Have you anything to say in illustration of any part of your testimony, or anything 
further with reference to the conduct of the judge towards members of the bar and yourself.— 
A. As to that, when Judge Busteed came the first time to the court I know my own feelings 
were all in his favor: what I mean to say by that is, that I, having been a secessionist from 
the time I had any political opinions at all, and an advocate of the war- 

(Judge Busteed here interrupted the witness, but he then proceeded.) 

The Wii ness. I felt it my duty and the interest of myself and my clients to be as respect¬ 
ful, kind, and courteous towards Judge Busteed as it was in my power to be. I resolved 
upon that line of conduct. As far as 1 was able, I did pursue it until the course of the judge 
himself, according to my best judgment, put it out of my power to continue it longer. I 
also ascertained the opinions of many members of the bar, from consultation with them. So 
far as I know, there was a unanimous opinion concurring with me in my views. Judge Bus¬ 
teed’s course in regard to the test oath, as to the lawyers, heightened and intensified the feel¬ 
ing, which existed in his favor before. I witnessed in the courts no conduct on the part of 
the bar inconsistent with the views which I state actuated me, and which I believe, from con¬ 
sultation with other lawyers, actuated them. Nothing further occurs to me at this time. I have 
attempted, in the examples I have given, to state what I believe to be a fair and just view of 
the things of which I have spoken. 

By Mr. Eldridge: 

Q. Did this conduct of which you speak, in the trial you have mentioned, occur in other 
cases than those in which J. Q. Smith was the district attorney.—A. I do not recollect any 
other case of the kind ; he has, however, acted as United States attorney in some of the cases 
since Ins removal from office 

Q. The conduct to which you refer, then, occurred in the cases or suits in which Mr. Smith 
tried them.—A. Yes, sir; it was in those cases only in which the overbearing and offensive 
conduct occurred. 

Q. Did that arise from the fact that Smith was looked upon as an inferior lawyer, and the 
judge showing some interest to have the cases properly tried; and did that conduct of tiie 
judge exasperate the attorneys so as to produce this collision.—A. That was only a part; it 
was the manner of his treatment of the counsel who were opposed to him, denying us the 
right, as I have stated, which I never saw denied in any other court before, of offering expla¬ 
nations of the testimony, so as to show the connection of the facts which we offered to pre¬ 
sent. 

Q. Do you think this conduct of the judge had any influence to determine the case differ¬ 
ently from what it would otherwise have been determined.—A. The judge determined the 
cotton cases—the cases where the condemnation of property was sought—himself; he did 
not allow a jury trial; he passed upon the law and facts both. 

Q. Are there facts in connection with these cases which led you to conclude that the 
judge was acting corruptly on their trial.—A. If I have to answer that question I am bound 
to say I did. 

Q. What was the particular conduct, and which were they.—A. In the cases ot the 120 
bales of cotton, and of the 192 bales, and one other, I think ; they are cases which are in the 
United States court now. , . 

Q. What conduct of the judge made you believe he was acting corruptly in the 120-bale 
case.— a. I looked at what he did on the first trial—his overbearing conduct towards couu- 



140 


sel managing for the defence, throughout the trial; his denial of the right to explain, order¬ 
ing him to take his seat whenever he attempted to explain, saying, “Put your question 
and his rulings on questions ; his interference with the counsel when he came to address the 
jury—the first case was a jury trial; his explicit and emphatic assertion that it was proved 
that his client had furtively taken this cotton, in the presence of the jury; and then his 
rulings on the second trial, which were similar to those on the first, taken in connection 
with his assurances while I was preparing the bill of exceptions. 

Q. Anything besides the circumstances you have detailed in regard to that matter.—A. I 
believe I have stated the conduct of the judge in my efforts to get the bill of exceptions, and 
I do not think of anything else at present. 

Q. Is there anything else that the judge said to you which you have not detailed.—A. I 
am satisfied there are many things that be said which I do not recollect; much was said at 
Mr. Stanwood’s. In regard to the 192-bale case a claim was put in for the Bank of 
Louisiana by Mr. Morris, and the exhibit, allegations, claim, and answer were filed; Judge 
Busteed required a different verification and different affidavit, and we had to comply.. Judge 
Chilton with me represented the claim of the Bank of Louisiana; the rulings of the judge in 
that case produced on my mind the impression I have given. 

Cross-examination by Judge Busteed : 

Q. Where were you born.—A. In South Carolina. 

Q. When.—A. The 2d of June, 18J6. 

Q. In what part of South Carolina.—A. Union district. 

Q. When did you remove to Alabama.—A. In the early part of 1838. 

Q. Were you admitted to practice before you went to Alabama.—A. I was admitted to 
practice in the appeal court in South Carolina before I left that State. 

Q. Were you ever tried and convicted of manslaughter in South Carolina.—A. I was. 

Q. Where.—A. In South Carolina, when about 17 years of age; and allow me to add, 
pardoned promptly by the governor, and mainly, as I understood, upon the statement of 
Judge Josiah J. Evans, who presided on the trial. 

Q. The person died, of course.—A. Yes. 

Q. It was a homicide.—A. Yes. 

Q. Do you recollect the date when you went down to Mr. Stanwood’s to see me.—A. I 
think the latter part of February, or in March ; I do not recollect the date precisely. 

Q. What time of the night did you get there.—A. After dark. 

Q. Was it as late as 9 o’clock —A. I could not say. 

Q. Will you say it was not as late as 9 o’clock.—A. I could not; I rode through a coun¬ 
try where I had never been before, over a very bad prairie road, and I did not notice the 
time. 

Q. Do you recollect that Mr. Stanwood got supper for you.—A. I do ; I understood the 
family had been at supper ; Mr. Stanwood was very kind to me. 

Q I was his guest.—A. I understood so. 

Q. Do you recollect the room in which you supped.—A. I never was at the house before ; 
I could not describe it. 

Q Do you know who were present at the time of your supping.—A. One, perhaps both 
the Mr. Stan woods. 

Q Do you recollect.—A. That is my best recollection; I think both were present at the 
time. 

Q. Were not Jacob Stanwood, Nathan Stanwood, and Frank Stanwood present all the 
time.—A. They were not. 

Q Are you sure of that.—A. I am sure, because w r e had a conversation before. 

Q. Where.—A. In the front part of the house, or the part that I was taken into. 

Q. Were not Jacob Stanwood, Nathan Stanwood, and Colonel Stanwood present all the 
time.—A. I am bound to state, according to my best recollection, that they were not all that 
time. 

Q. In what part of the house did the conversation about Morris take place.—A. I could 
not say. 

Q. Will you say it did not take place in the dinning-room.—A. My opinion is that we 
talked about it in the dinning-room, but also before we met them. 

Q How long did we stop on that stoop when you came up that night.—A. Some time; I 
could not say how long. 

Q. How long do you think. Did we stay an hour.—A. I think not. 

Q. Did we stay half an hour; what is your best judgment.—A. I have no best judgment. 

Q. Have you any recollection about it.—A. I have none; my mind was not on time at*all; 
I did not consider time material. 

Q. Did not Jacob Stanwood tell you that night that the judge did not want to talk with 
you at all about it.—A. I think you did: perhaps he did too; you gave me to understand 
that you did not want to talk or do anything about it. 

Q. Did not Jacob Stanwood tell you, “ The judge does not want to see you.”—A. I don’t 
pretend to say; I have no recollection whether he did or not. 

Q. When Judge Busteed told you that he suspected Morris of attempting to bribe the court 


141 


by tins payment to Wilson, did you not, in the presence of Jacob Stanwood, Nathan Stan- 
wood, Frank Stamvood, and the judge, declare that that was the first knowledge you had of 
the money transaction between Morris and Wilson.—A. I will not say about that; I think I 
would not be at all warranted in saying yea or nay to that; but I do recollect distinctly what 
I had received from Morris I had received from my client, and felt bound to keep it inviolate 
unless a higher and controlling obligation forced it out of me; I did not want to irritate or 
exasperate, but to woo and soothe ; that was the spirit in which I went there. 

By Mr. Eldridge : 

Q. What is your recollection about this statement.—A. I have no recollection ; I would 
not deny the statement of Mr. Jacob Stanwood or any other gentleman, if he were to say I 
did ; I know I did not want Judge Busteed to know that I had heard anything on the sub- 
ect from Morris. 

By Judge Busteed: 

Q. Will you swear now that in point of fact you had not talked with Josiah Morris, 
before he went to Mobile to see me, on the subject of Morris’s making an offer of money to 
Jacob Wilson.—A. I do unqualifiedly and emphatically; that I never heard the subject 
mentioned by Morris or anybody else before he went to Mobile; and I never thought of it. 

Q. Do you recollect that Judge Busteed said to you that night, “Judge Rice, you have 
been on the bench, and how would you feel towards a man who made such an attempt upon 
you as Morris has made upon me, if Morris afterwards were to make an application, resting 
in the favor of the court.”—A. I recollect something of that kind occurred, but I do not 
recollect what. 

Q. Do you not recollect that you said, “ Judge, so far as its influencing me to deny a favor, 
it would have the effect to cause me to give it.”—A. I do not recollect; but I say now it 
would have that effect on me if 1 were a judge. 

By Mr. Eldridge: 

Q. Do you mean to say you would do more for a man who attempted to bribe you than for 
another. — A. No, I mean to say, that as a judge it would make no difference beyond stirring 
me up, perhaps, so that if he asked a favor of me I might feel bound under honorable obli¬ 
gations so that I could not put it in his mouth to say, “If I had not offended him, it would 
have been granted, and because I had offended him it was denied.” 

Q Do you mean to say that if a man attempted to bribe you, you would consider him 
friendly to you, or otherwise.—A. I would not consider the man friendly to me ; but still, as 
a judge, if he came before me as a suitor, if I remembered the charge, though I viewed it 
in that light, I would so far master the sense of indignation that he had inspired in me, that 
I would endeavor to take it out of the power of such a man to say, “This judge is influenced 
by that.” If I were influenced, it would be in that way; I would be more reluctant to 
deny a matter that I had the power to grant to such a man. This is speculative; in fact, I 
think a judge ought not to be at all influenced by any such thing. 

By Judge Busteed: 

Q This communication of Judge Busteed to you, was made with his knowledge that you 
were his counsel, was it not.—A. Yes, he knew I was counsel for Morris. 

Q Therefore, as you knew, made under a masonic obligation to you —A. So I understood. 

Q. Do you recollect my sayingthat the other persons present were also masons. — A. No, I 
do not. 

Q. Why did you not tell me that Morris had communicated with you on this subject when 
I gave you this information, under the seal of obligation.—A. Because I felt under obliga¬ 
tion of a different kind to Morris, as a client; and in addition the circumstances under which 
he communicated what he did to me. 

Q About how long after that was this conversation at Stanwood’s; did you see Morris 
pay the money to the marshal.—I could not state The date is accurately evidenced by 
writing. Perhaps a month, more or less ; I could not say. 

Q To whom did Morris pay the money.—A. I think it was to Hardy himself. It was to 
him or to some of the men about his office. 

Q. Were you present at any payment to Screws of the Montgomery Advertiser, on this 
Morris judgment.—A. If so, I have forgotten it; I may have been. 

Q. You do not recollect anything about it.—A. I do not. 

Q. Did you communicate to Morris anything of what occurred at the plantation, about 
this payment to Wilson.—A. I think not. 

Q. Are you sure whether you did or not.—A. My best recollection is, I did not communi¬ 
cate anything given to me under this masonic obligation. It was a part there was no obli¬ 
gation about, I communicated to him, if any. 

Q Did you say Morris spoke to you about suing Judge Busteed.—A. I think he did. 

Q. W1 ien.—A. I think shortly after the payment. 

Q. Where were Morris and you when he spoke to you about it.—A. I have no recollec¬ 
tion. We were in the city of Montgomery somewhere. 

Q. Did he speak to you of it two or three times.—A. I think more than once. We spoke 


142 


about bis remedy, and bad a very full and free talk about it on that matter. He brought it 
to my attention, and consulted me about it, and I gave him my views. 

Q. What was the suit to be brought tor.—A. To recover the money back which was paid 
to Wilson. 

Q. And on what grounds was the suit to be maintained.—A. Well, my own opinion was- 

Q. What was said. State what was said.—A. I give you the substance. 

Q. What was the ground upon which the suit was to be maintained.—A. That the money 
was improperly obtained from him, and because the consideration had failed, and it was 
money that Wilson had no authority to take from him, and, even if he or you had, still, as 
the consideration had failed, cause of action arose upon you for the money, or upon Wilson 
to restore the money to Morris. 

Q. Morris was not the owner of that cotton, as he swore, was he.—A. He was not the 
general owner, but the special owner. 

Q. Did Morris swear in the United States district court that the Bank of Louisiana was 
the owner of this identical cotton.—A. I think he did. 

Q. Don’t you know—A. We explained to Morris the distinction in the law between the 
general and special owner. 

Q. Was there not an affidavit annexed to the answer of Morris which did not set up owner¬ 
ship in tfie bank, and a motion made by Mr. Smith to strike that answer from the roll, on 
the ground that the oath did not conform to the supreme court rule. 

Q There was an oath made by Morris, in the first instance, when he interposed his claim, 
which you held to be insufficient, and required another. And that was the ground, was it 
not.—A. I do not recollect. I did not charge my mind with that, because they are on the 
records of the court. 

Q. So far as you know by any communication from Morris to you, he is not, in fact, the 
owner of that cotton, is he.—A. He is the special owner, and the Bank of Louisiana is the 
general owner, according to the decision of the supreme court of Alabama. 

Q. The Bank of Louisiana, then, would be a person entitled to sue Judge Busteed or Jacob 
Wilson in relation to. the payment by Morris —A. No, sir 

Q. Why not.—A. Morris did not pay the money of the Bank of Louisiana; he said he 
paid his own money. 

Q. How much time elapsed between the conversation with Morris respecting the suit he 
wanted to bring against the judge and the conversation about Wilson.—A. [ think that 
whenever the matter was spoken of about the judge or Wilson, they were both spoken of 
together. I do not wish it to be understood that in one conversation he spoke about you, 
and in auother about Wilson. 

Q. How much time elapsed between those conversations.—A. I have no recollection. 

Q. None at all.—A. No, sir. 

Q. May it have been six months.—A. Well, if you put it that way, the conversations were 
all within six months. 


January 15, 1869. 

Cross-examination of Samuel F. Rice continued. 

By Judge Busteed: 

Q. Can you fix the date of any conversation between yourself and Mr. Morris in respect 
to the suits contemplated concerning this $5,0U0.—A. No ; except this, that it was aft^r 
Morris had paid the entire amount of the decree under the execution. 

Q. Can you fix the locality at which any of these conversations occurred.—A. Only that 
it was in the city of Montgomery. I could not state what place in Montgomery. We met 
each other frequently—almost daily; and were quite intimate. It would be impossible for 
me to fix the place or date. 

By Mr. Eldridge: 

Q. Do you mean to say that these conversations between Mr. Morris and yourself were 
meiely casual.—A. No; they were not casual. On the contrary, they had direct reference 
to that matter. But, as I said, we met pretty much every day ; and Morris is in the habit, 
when he has business with me, if I am at his bank, or house, or meet him on the street, or 
at my office, of taking the liberty of consulting with me, as clients frequently do. They 
were not casual; they were conversations between client and attorney ; statements of fact, 
and advice given. 

By Judge Busteed: 

Q. Cau you state for what periods these conversations upon this subject continued, and 
when they ceased.—A. No; I could not. 

Q. On the morning when you and Morris went to see Judge Busteed in Montgomery, at 
J. Q. Smith’s room, and when this conversation occurred in which the judge said lie could 
do no more for Morris than what he had done, did you know at that time of this payment of 
$5,OUO.—A. Morris had told me he did that upon his return from Mobile, when tie told me 
you would be there by the next train. But, at the same time, I understood it to be strictly 
confidential. 


143 


Q. Morris told you, as I understand, tlmt this $5,000 was to be a settlement of the judg¬ 
ment against him for $30,000 —A. That is the substance of his understanding, as stated to 
me. The way he stated it was, that at first you refused to do anything, and read from the 
book that you took down, from which reading you had no power at all over the matter; that 
some further conversation occurred between you; and he then said, in substance, that rather 
than be annoyed with further litigation about it he would be perfectly willing to pay the 
entire amount the cotton sold for; and thereupon you said, in substance, that if he would 
do that you would make Smith agree to that settlement, or that a settlement should be made 
upon that basis. There was some other conversation ; I do not profess to recollect it all ; 
and he then went out from your room. But afterwards, in the course of the same day, Jacob 
came to him to tell him that you had sent him to get the money, saying to him that you said 
Motris had better send the money to you before you went to Montgomery. Morris stated 
also that at one of these interviews, whether at the time Jacob demanded the money and got 
it or not I am not quite sure, but certainly in the same day, Jacob said: “Judge Busteed 
thinks he had better not go with you to-morrow, or on the same train, as spoken of between 
you; but he will go on the train afterwards ; and he wants you to tell J. Q. Smith that the 
judge will be there by the next train, and to meet him ar the depot and take him over into 
town.” That, I think, was about the substance of the conversation which Morris detailed 
to me upon that occasion. 

Q. Did he tell you that Morris understood there had been any settlement.—A. He told me 
he understood that the payment of that money would settle the matter finally; and on that 
account you had kept the appeal papers which he had taken down with him to Mobile; and 
that was one of the reasons why you kept them. 

Q. Why should you have kept Morris from stating that fact in the conversation at Mont¬ 
gomery in Smith’s office, when you say you anticipated Morris’s statement on that morning ; 
why si O’dd you have prevented him fiom stating that be had paid this $5,000.—A. Because, 
as I said, among oth< r things, I diseo\ered that J. Q. Smith obj’ected 'to everything pro¬ 
posed about the matter on that occasion. I became myself very soon satisfied, in the course 
of,the conversation, that if the settlement depended upon the consent of J. Q. Smith it was 
impossible to have it made. 

Q. Why, then, did you not at once state that the settlement Morris had made in Mobile 
was evidently not to be consented to by J. Q. Smith, and that you had better return Morris 
his money.—A. I wanted a settlement made, and I thought, in the temper Smith was in that 
morning, any statement of such a settlement being promised would defeat it. 

Q. There was nothing wrong, according to Morris’s statement to you, about the payment 
of this $5,000.—A. As to that I will not .*ay what moral wrong there may have been; I did 
not think you had the power to do what Mo ris said you promised, but as he had made the 
arrangement I wanted to give him the opportunity of having it carried out. 

Q. There was nothing in Morris’s statement to you which suggested that he intended to 
commit any wrong.—A No, or that you had intended to commit any wrong, unless the law 
did not ailow you to do what he said you would do. 

Q. And that was the only reason which induced you to make Morris continue silent in 
relaiion to the payment of this $5,000, which Morris told you was to be in payment of the 
entire judgment.—A. It was the main reason that was uppermost in mind. Morris was 
anxious to be relieved; he was a client of mine, and a gentleman whom I held in high esti¬ 
mation ; he was in the banking business, and very much worried. He had expressed to me 
the fear ihat these suits would perhaps affect his credit as a banker, and I wished to keep 
him from doing anything which I thought would prevent him from having what he wanted, 
which be said was peace. 

Q. I understand you that Smith would not consent to anything — A. I understood that he 
was opposed to what had been proposed on that occasion, and I inferred he would oppose 
the settlement. 

By Mr. Eldridge : 

Q. Did you understand from Morris, in this conversation, that the Judge had actually set¬ 
tled the^e suits, or only that he was going to make an effort to do so.— \. I understood from 
Morris that the Judge would have a settlement made, and that he would go to Montgomery 
and have it done. 

Q. You did not understand that this settlement was complete.—A. No further than that 
Morris said to Judge Busteed that he would rather lose the entire amount he got for the cot¬ 
ton than have further litigation; and that Judge Busteed replied: “If you will do that I 
will make Smith do it; ” and then I think he said, I will give you such directions, or you go 
and tell Smith and it will be done; to which Morris said that the relations between him and 
Smith were not good ; and the judge then added, “I will go and have it done.” I did not 
understand that there was any further settlement than that. 

By Judge BUSTEED: 

Q. Finding that the district attorney would not consent in any degree to the settlement 
which Morris told you was proposed by the judge in Mobile, and that the case would never 
be settled upon these terms, why did you advise Morris to postpone his suit for the money, or 
his demand for it.—A. Your question assumes what, if I have said, I did not intend to say and 


144 


do not moan; it assumes that I have said that Smith objected to the settlement you and 
Mon is spoke of. That settlement was not spoken of in the conversation Morris st arted, as 
1 understood him to speak about it, and at my instance desisted. What Smith did object to 
was as to these appeal papers being signed by the judge—the bond, the citation, and appeal, 
the stay, &c. The settlement was not mentioned in the presence ot Smith. Ot course I 
do not know what he understood about it; Morris got out just about enough to lead me to 
believe that he was going to speak about it; I did not want him to speak of it, because I 
thought if Smith got the impression at that time of what had been done at Mobile, Morris 
would be entirely defeated in obtaining a settlement. 

Q. But he did not agree to anything.—A. No. 

Q. Finding that no supersedeas was allowed you, why did you then delay in advising 
Morris to sue either Judge Busteed or Wilson for this $5.000.—A. The main reason for my 
advising Morris to delay was, that you had spoken of having Morris indicted for bribery, or 
an attempt to bride, and I thought he ought not to sue, pending any intention to act upon 
that subject. My advice to him was to wait and ascertain whether you would cause any 
indictment to be made against him. And there were other reasons besides. I thought that 
Morris could not possibly be injured by delay, and that in course of time further develop¬ 
ments might be made. I thought it was a plain case, upon the fact stated by Morris, against 
you, if Wilson had turned the money over to you, and against him if he had not. 

By Mr. Eldridge : 

Q. If the fact stated by Morris, that Judge Busteed sent Wilson for the money, was proved, 
it would make no difference whether he actually received it or not.—A. Of course not. I 
know Morris well, and I believed everything he told me; and I was confident, in my own 
mind, from what Morris said, and fiom the whole circumstances, that the judge had sent for 
the money and got it. 

By Judge Busteed: 

Q. And you believe now that Morris did not intend to offer a bribe.—A. That is my belief. 

Q. And you have continued that belief unchanged from the time of Morris’s statement to 
you, until the present —A. I have. With the very high opinion I have of Morris’s charac¬ 
ter, I could not believe that he would offer a bribe. 

Q. And you do not believe that he intended to offer a bribe.—A. I do not. And in that 
connection I hope I may be permitted to say, that I did not do myself justice yesterday in 
my statement of the reasons inducing me to believe that your conduct was corrupt. I said 
that Morris’s statement and my knowledge of his reputation led me to believe what he said, 
and I should have added, that the settlement promised by you, as stated by Morris, and 
your failure, after the settlement was not made, to comply with the promise to return the 
money to him, was another reason why I thought your conduct as a judge was corrupt. I 
thought that after receiving the money from Morris when the settlement fell through, com¬ 
mon lmnesty demanded the return of the money to Morris. 

Q. In the trial of these confiscation cases in which you appeared as counsel, did you keep 
any minutes of the testimony.—A. No; I did not. 

Q. The bar generally, at Mobile and Montgomery, so far as you know, do not take or 
keep minutes.—A. 1 think not, as a general thing. 

Q You took no minutes yourself in this case, and yet you continually insisted that your 
recollection was as good as any minutes of mine.—A. I will not say precisely that. I did 
insist, and I do insist usually, that in any trial at any term of the court, I would greatly 
prefer relying upon my recollection of testimony than upon any minutes 1 could make, not 
being a short-hand writer. And it has not been my habit to make minutes. 

Q. You had no difficulty in procuring the loan of my minute book.—A. I had none. 

Q. And kept it two or three days, returning it to me for use while the court was in ses¬ 
sion, and I sending it to you afterwards.—A. Yes. 

Q. Will ymi say that you handed to me the bills which you made up from my minute 
book at any time in your life —A. I went to your room for that purpose. When I got there 
I think you had a part of your clothing off I offered the bill to you, and whether you took 
it in your hands out of my hands, I do not pretend to say ; but that it was left in your room 
and under your control, and that your attention was called to it, is what I do state. 

Q. And that is all you mean to say.—A. That is the substance of what I said. And I 
may add that when I went to Mobile in the Christmas holidays, you admitted that you had it. 

Q. Is it nut very much the habit of the Montgomery bar to rely upon verbal agreements 
in relation to cases, instead of reducing them to writing.—A. Yes, sir. 

Q. And is it not the fact that Judge Busteed refused to recognize such agreements of 
counsel unless they were put in writing.— A. I do not recollect as to that. 

Q Do you not recollect that Judge Busteed stated more than once from the bench in 
Montgomery, that he would disregard any agreement of counsel in relation to cases, where 
the agreement was not reduced to writing.—A. I have heard you state that. 

Q. Do you not know that that rule was complained of by some of the attorneys, on the 
ground that it was an impeachment of their honor.—A. I cannot say that I remember any 
complaint of that sort being made. 


t 


145 

Q. Did I understand you to swear yesterday that I said to you in respect to the papers 
which I brought with me from Mobile, and which I asked Smith to allow me to put into his 
safe, that if I never came back the papers should have effect.—A. I think I so stated; if 
I did not, I do now. 

Q. That was the understanding.—A. That was expressly agreed, as I understood. After 
you had said that that was all you could do, then you stated that you were goino- north, to 
be back soon, and I then said to you, in substance, that accidents happened to people upon 
railroads, and even when not on railroads, and that you might, from some cause or other, 
never get back. My proposition to you was, that you should sign these papers upon con¬ 
dition that if you never returned to Alabama they were to be valid and effectual, and to 
operate as they purported upon their face to do; but that if you returned, you were to have 
full power over the whole matter precisely as if you had never signed them. Whether you 
said in terms, “I agree to it,” I do not profess to state. But, upon that express proposition 
made by me, you signed the papers. 

Q. Would you know the envelope in which these papers were placed ; and is the one now 
shown you, that envelope.—A. I have no recollection of seeing the memorandum which is 
upon this envelope. 

Q. State whether the endorsement upon the envelope which I show you is in my hand¬ 
writing.—A. I think it is in your handwriting. But if there was an endorsement made at 
the time, or if I ever saw this endorsement before, I do not recollect it; I have no recollec¬ 
tion of your making any endorsement at all upon the papers. 

Q. Do you not recollect, not only that the judge made an endorsement upon the envelope, 
but that upon your suggestion he altered its phraseology.—A. I have no recollection as to that. 

Q. Will you say that that did not occur.—A. No, sir ; of course I could not say that; I 
have no recollection as to that. 

Q. At what part of the year 18(56 was it that my conduct so outraged and insulted you 
upon the trial of the 120 bales.—A. It was at the May term of your court, which commenced 
the 4th Monday in May, 1866. 

Q. Did you, within a day or two of that trial, by invitation, meet me at a dinner given 
by Mr. Knox.—A. I think upon the same evening after the trial was decided in my favor. 

Q. This was the trover case ; what other case was it in which I insulted and outraged you, 
and when, as to the point of time.—A. The first case was the one in which your conduct 
was the most offensive. In the trial of the 192 bales it was not as bad, according to my 
opinion. I cannot say whether it was in December, 1866, or not; and I may be mistaken as to 
the particular case. It may have been the next trial, of the 120 bales. 

Q. Did you believe the conduct of the judge in that case to be corrupt, as well as insulting 
and arbitrary, either at the first or the second trial.—A. That is a very difficult thing to tell, 
because of the distinction I try to observe between a strong suspicion aud a belief; I had a 
strung suspicion, to say the least, as your conduct was such that I could not account for it 
upon any other idea. 

Q. Aud you did strongly suspect, at the time, that the judgment of .the court proceeded 
from a corrupt motive.—A. No, not the judgment of the court, but the rulings and proceed¬ 
ings upon the trial. 

Q. This was all before April 4, 1867.—A. I could not be sure as to dates. The records 
are here. 

Q. Look at the letter now shown you and slate if it is in your handwriting.—A. That 
is my handwriting, and that letter was written by me. 

The letter was read and is as follows : 


“ Montgomery, April 4, 1867. 

“ Yours in relation to the case of the United .States vs. John N. Morris and John F. John¬ 
son came by due course of mail. I regret that you differed with me upon the question of 
your power ; but still. I am pleased as to the course you intimate you will take as to the 
fund, while the appeal is pending. I think that course is eminently wise and just; and I 
believe, will be entirely acceptable. 

*• With my best wishes for your welfare, I remain yours, &c, 

“ SAMUEL F. RICE. 

“Hon. Richard Bcsteed.” 

Q. You have tried a good many cases in my court besides these confiscation cases.—A. I 
have tried some cases besides these confiscation cases ; 1 will not try a good many. 

Q Can you name any other case in which you had just reason to complain of my con¬ 
duct, or in which you had strong suspicion that my ruling proceeded from corrupt motives.— 
A. I do not recollect at present of any civil cases between individuals in which anything 
like the occurrence took place that did in these cotton cases. I deem it due to you to say 
further, that I have been in cases between individuals when j’our conduct was as unexcep¬ 
tional as that of any judge I ever saw in my life. 

Q. Do you recollect the trial of the case of Nicholson vs. Smith, Cullum & Co.—A. I 
think I was in court when it was being tried; I do not recollect any particulars. 

Q. Do you recollect whether there was any evidence offered upon that trial proving the 

10 B 


146 


■co-partnership of Knox with Smith & Cullum. You was the attorney of Knox.—A. I do 
not recollect whether there was or not; I do not recollect of taking any active participation 
in the trial. It may be that I did. 

Q. Were you in court when the judge charged the jury in that case.—A. I think I was ; 
I am not sure. 

Q. Do you recollect that the judge charged the jury in that case that there w r as no evi¬ 
dence of the co-partnership of Knox, and that, for that reason, they must find a verdict in his 
favor.—A. That is a thing I am a little confused about. I either heard your charge, or I 
heard some person say that it was your charge. Which way it was I could not tell from any 
recollection I have. 

By Mr. Eldridge : 

Q. Did you see the pleadings in that case.—A. I have no recollection sufficiently distinct 
to justify me in making any statement one way or the other about the case. Even my im¬ 
pressions about it are confused. I have heard it talked about a good deal since. I did not 
pay much attention to the trial that I recollect. 

By Judge Busteed : 

Q. What is the character of Knox in Montgomery.—A. Good. 

Q. Is it not irreproachable as that of an honest man.—A. I would not like to use as strong 
a word as that. I cannot call any man’s character irreproachable against whom I have ever 
heard anything. I have no hesitation in stating that his general character, according to my 
information and judgment, is good. I could not say more than that. 

Q. You spoke of the relations between the bar and Judge Busteed ; do you mean by that 
the social or professional relations.—A. I mean both, so far as I am concerned. I do not 
mean social in the sense of inviting the judge to our private houses, but I mean social inter¬ 
course between the judge and myself wherever we met. 

Q. Did you ever invite him to your house.—A. I never did. 

Q. Do you know of any lawyer in Montgomery who ever invited him to his house, with 
the exception of .Judge Chilton and Mr. Thorington.—A. I do not recollect any others. 

Q. Do you recollect when it was that Mr. Thorington invited him to his house.—A. I do 
not recollect. I was there, but I could not fix the time. 

Q. You sued Judge Busteed in what is called the circuit court of Montgomery, Alabama — 
A. The firm of which I was a member did sue him. 

Q. State the name of the firm.—A. Rice, Semple & Goldthwaite. 

Q. Did you sue him by summons and complaint.—A. Yes, sir. 

Q. Look at the papers now shown you, and tell me whether they contain the summons 
and complaint in that suit.—A. I think so. 

Q. The paper came from your office.—A. No; it came from the clerk’s office, if that is a 
copy of the original paper, as it appears to be. 

Q. Who prefided over the circuit court of Montgomery, Alabama, when this action was 
brought.—A. George Goldthwaite was the judge of the circuit. But in Alabama the circuit 
judges have the right of alternating with one another, and frequently do so. 

Q. Was not George Goldthwaite your partner before he went upon the bench of the cir¬ 
cuit court.—A. He was; in the firm of Goldthwaite, Rice & Semple; but that firm had been 
dissolved befioie this suit was commenced, and he had no interest whatever in the suit of 
Rice, Semple & Goldthwaite, above referred to. 

Q. The plaintiff named Goldthwaite in this suit, who was your co-partner at the time the 
suit was brought, was the son of Judge Goldthwaite.—A. Yes, he was. 

Q. Before the judge went upon the bench, the firm was Goldthwaite. Rice & Semple; 
and afterwards it was Rice, Semple & Goldthwaite, young Goldthwaite being a partner.— 
A. Yes. 

Q. And Henry C. Semple, the prosecuting witness here, is the person referred to as your 
partner.—A. Yes, sir. 

Q. Who were the parties to this suit.—A. Rice, Semple & Goldthwaite versus Richard 
Busteed, Rufus Andrews, and Charles A. Mott, defendants. 

Q. Who were the attorneys for the plaintiffs.—A. Martin & Troy, and Elmore, Keyes & 
Morisett. 

Q. Do you not know that one of the firms of attorneys for the plaintiffs, in this case, were 
themselves plaintiffs in a similar case against the same defendants.—A. My recollection is 
that there were similar suits, one by John A. Elmore against the same defendants, and an¬ 
other by Elmore, Keyes & Morisett against the same defendants. 

Q. Were your firm the attorneys in the case of Elmore, Keyes & Morisett.—A. I think 
so. I would not say that we were the only ones. I think Watts & Troy were also retained ; 
I am not certain about that. 

Q. For what was this action brought.—A. It was brought to recover damages to the 
extent of $20,000, according to its terms, for a corrupt conspiracy to defraud the plaintiffs 
of their rights, which they asserted, to certain fees described in the complaints, as attorneys 
and solicitors for Mott. 

Q. At the time Judge Busteed was served with these papers had there been a final adjudi¬ 
cation of the case, as to the amounts to which the attorneys were entitled out of the fuud.— 


147 


A. Not a final adjudication, but an adjudication. And I may state, in connection with that, 
that Judge Busteed required Mr. Elmore to deliver the fund into court, and made Mr. Chil¬ 
ton a special custodian of the money. 

Q. Was this complaint published in the Montgomery Mail in eztcnso.—A. I think it was. 
It is my best recollection that it was published in both the Montgomery papers. 

Q. And copied into nearly every press of Alabama.—A. I do not know as to that. 

Q. Was it copied into the Mobile Register.—A. I do not know ; I do not take that paper. 

Q. Who furnished the papers in Montgomery with a copy of that complaint.—A. I am 
not certain whether I did or not; I have no distinct recollection. I think one of the editors 
wanted a copy, and that I either furnished it or told him where he could get it. I am 
willing to admit that I had no objection to the paper being furnished. 

Q. Have you any doubt that you gave it.—A. I have a doubt; but I will say that if I had 
had a copy I would have given it. 

Q. What was the amount of claim of John A. Elmore and of your firm of Rice, Semple &. 
Goldthwaite against Mott, out of which this complaint grew.—A. I think Elmore’s firm and 
our firm, upon consultation, agreed that $4,000 currency would be proper compensation, 
under all the circumstances of the case. That is my best recollection. I mean that the 
joint claim of the two firms was for that amount. 

Q. Motion was made by Andrews to compel Elmore to pay that fund into court previous 
to this suit against the judge.—A. Yes, I think so. 

Q. And upon the hearing of that motion the fund was ordered out of the custody of 
Elmore, one of the attorneys, and into the custody of the court, was it not.—A. It was; and 
I may say that as I understood the matter, Elmore did not hold it as attorney, but also as 
bailee under compromise. He was selected as special bailee for that purpose by the parties 
to the suits which were compromised. 

Q. Who appeared for you as your attorney to resist the motion that the fund be turned 
over by Elmore to the custody of the court.—A. John T. Morgan, as I recollect. 

Q. He is brother-in-law of William P. Chilton, whom the judge appointed as special cus¬ 
todian.—A. Yes. 

Q. In your affidavit to resist this motion to transfer the fund from Elmore to the court, 
did you not express your willingness that Mott should have $7,000.—A. I really do not know 
whether I expressed that in my affidavit or not. It is filed in the district court. 

Q. Will you say that you did not express such a willingness.—A. I will not say that. I 
wrote the affidavit hastily, and in court, and I am not sure whether I say that or no. 

Q. Do you recollect the lawyers called to prove what the value of your services were in 
that case.—A. I recollect several of them. Daniel S. Troy was called by Mr. Morgan as a 
witness, David Clopton was one, Judge E. W. Pettis was another, Jack Thorriugton another, 
and Thomas H. Watts another. He offered Judge Chilton at the close, I remember, and 
you declined to hear him. 

Q. Do you recollect that Troy valued your services as worth$7,500.—A. No, sir; I do not 
recollect the specific statement as to the value of our services given by any one especially. 

Q. Do you recollect that David Clopton swore your services were worth $5,000.—A. I think 
it was $4,000 or $5,000. 

Q. Do you recollect that Thorriugton testified that you should have a $5,000 fee and 10 
per cent, in addition, as a reasonable allowance.—A. I do not. 

Q. Was the suit of Rice, Semple & Goldthwaite against Busteed, Andrews & Mott ever 
tried.—A. No, sir. 

Q. What became of it.—A. It was dismissed. I do not recollect the time. The date given 
upon the paper before me is, I presume, correct—the 19th December, 1867. I should like to 
be permitted to state the circumstances of that dismissal. 

Q. You were at a party given by Colonel Powell.—A. I was. 

Q. There was card-playing there.—A. Yes, sir. 

Q. You sat at a table with Judge Busteed, Judge Brooks, and Judge Pettis when we 
played draw-poker.—A. I recollect some of the parties named ; I think they were the parties. 

Q. Will you state to this committee whether marked cards were used on that occasion.—A. 
You told me they were marked afterwards; I didnot know that they were marked. If they 
were I do not know it otherwise than by what the judge told me, and I was at a disadvantage 

Q. Has it been the subject of conversation and agreement between Henry C. Semple and 
yourself and Judge Goldthwaite, that Henry C. Semple should join the republican party of 
Alabama, for the purpose of procuring influences sufficient to oust Judge Busteed from the 
bench.—A. Never; on the contrary, I did all I could to keep him from joining the republican 
party ; I was opposed to it out and out. 

Q. Have you paid any money, or subscribed any, or agreed to pay any towards the 
expenses of Henry C. Semple in the prosecution of this attack upon Judge Busteed.—A. I 
attended a meeting of lawyers that was held in Montgomery before Mr. Semple came on, at 
which meeting Judge Chilton presided, and at which I think there was a pretty general 
attendance of the bar of Montgomery; certainly of the older members. At that meeting a 
proposition was made and unanimously adopted that a committee should be appointed, con¬ 
sisting of Judge Chilton, Mr. Elmore, and Mr. Watts, to raise funds to defray the necessary 
expenses these gentlemen might be subjected to in this prosecution. 


148 


Q. Did you feel yourself bound to respond to their call.— A. I did. 

Q. In what sum.—A. I do not know ; I recognized it as an honorable obligation, and I 
shall be bound to contribute what I consider a fair proportion of the expenses when the 
amounts shall be made known. 

Q. You cannot tell now* what rate you have fixed the tariff.—A. I cannot; I have no idea. 

Q. You are acquainted with William H. Smith, the person who is now Governor of Ala¬ 
bama.—A. Yes, sir; I am well acquainted with Governor Smith. 

Q. Have you had any conversation with Governor Smith, looking towards the forced 
expulsion of Judge Busteed from the bench by impeachment.—A. I have. 

Q. How often have you conversed with him upon that subject.—A. I suppose not less 
than two, nor more than five or six times on the subject of impeachment. 

Q. Where were those conversations held.—A. I could not fix the place; I think some of 
them have been at the capitol at Montgomery. 

Q. And some of them at his house or your house.—A. No. 

Q. Have you in the office of Stone, Clanton and Ivlopton or in your own office.—A. Not 
that I am aware of; Governor Smith boards at the hotel in Montgomery, and w r e may have 
talked upon the subject there, or 'while passing on the street. 

Q. When was the first of these conversations with William II. Smith on this subject, as 
to time.—A. I recollect none further back than about the time Major Semple came on here 
to Washington, or perhaps a little after that time, in the latter part of the year 1868. 

Q. You were present at the session of the district court of the United States for the middle 
district held at Montgomery in May or June, 1868.—A. Your last term—yes, sir. 

Q. Your firm had some business on ,the docket.—Y r es, sir. 

Q. A part of that business was conducted for the defence by J. Q. Smith.—A. I think 
there was one civil case which I now recollect—the case of Oliver Ditson against Joel White. 

Q. You recollect a motion was made to suppress the testimony which had been taken on 
commission.—A. Yes. 

Q. And that the inclination of the judge’s mind was to deny your motion to suppress.—A. 
Yes; I understood you as in favor of overruling the motion. 

Q. You argued it, and afterwards Henry C. Semple came into court and argued it at length 
on the same side.—A. We both argued it. He did not make a long speech. 

Q. Upon the argument of Henry C. Semple the previous inclination of the court took a 
different turn.—A. l r es, sir. You sustained the motion after hearing Henry C. Semple, and 
suppressed the testimony, I thought very rightfully. 

Q. That was a decision against J. Q. Smith.—A. J. Q. Smith was the attorney for the 
plaintiff in that case. The decision was against him. 

Q. Do you know John C. Keffer.—A. Yes, sir. 

Q. He was register in bankruptcy, nominated by Chief Justice Chase, and approved by 
me, for the middle district.—A. So I understood ; I have no doubt of the fact. 

Q. Did you write a letter to me on the subject of Mr. Keffer.—A. I wrote a letter for some 
of the securities of Mr. Keffer. at his request. I framed the letter. I do not know wlietlie r 
it went to you or not. 

Q. Do you not recollect sending with the petitions of lawyers and citizens of Montgomery 
a letter upon the subject to the judge.—A. I do not recollect. If I were to see it I could 
answer the question very soon. (A paper purporting to be a certified copy of the letter 
shown to witness.) To the best of my recollection that is a copy of the letter I wrote. 

Q. Prior to 1860 how often have you sworn to protect and defend the Constitution of the 
United States.—A. I could not tell; several times, in the various positions I have occupied. 

Q. Subsequently to 1860 did you eugage in armed treason against the United States.—A. 

I do not like the use of those words. I was a secessionist, and did all I could except fighting 
and getting myself shot at to aid the cause of confederate independence throughout. I desired 
its success, and worked for it. I was a member of the senate of Alabama during the entire 
time of the war. I voted for the war measures, and spoke for them. 

Q. In July, 1868, did you meet Judge Busteed in New York.—A. I did. 

Q. Were you brought to a room in the Metropolitan Hotel, in which he was staying, by 
Judge Chilton and Jacob Stanwood.—A. Yes, sir. 

Q. And did you then and there shake hands with Judge Busteed over the past and agree, 
after some little statements on either side, that you would consider all the past as settled 
between us.—A. I told you what I felt and what I now feel, that I thought you had done 
me personally great w r rong, but that for all the personal w r rong and evil done, I freely for¬ 
gave you—that as to that, I was done with it. 

Q. It was a mere forgiveness on your side, then.—A. No, sir; it was the same on your side. 

Q. That is the way you stated it to them.—A. I think that was the way I meant to state 
it. If I did not do so, I did not do myself justice. 

Q. Will you state that such a word as you have uttered here was ever used in that room 
at the Metropolitan Hotel.—A. I will not swear to the words used. 

Q. Will you swear that you recollect any such word used as you have stated here, in that 
room.—A. I will not. 1 will swear that that was the substance of the conversation, to the 
best of my judgment; that it was what I said and meant. So far as rubbing out anythin^- 
further than that, I did not understand even that it was asked. I wish to qualify, with the 


149 


permission of the committee, a statement I made yesterday. Major Semple yesterday evening- 
said to me that he thought I was mistaken about having been personally present when the 
actual payment of the entire amount of the judgment was made by Mr. Morris I have 
thought over the matter anxiously, and my impression is now that I did personally see the 
money paid; at the same time I think I maybe mistaken. I recollect distinctly that Mr 
Morris and myself were together on the day the payment was made, and if I did not see the 
payment made, I learned from Mr. Morris immediately that it had been made. I tried my 
best, by urgent appeal to Mr. Hardy, the marshal, to get him to take the check of Mr. Morris, 
who was a banker, and whose check would be equivalent to the money ; the money would' 
be just as safe in that shape, and would be available to Mr. Morris to use in his banking 
operations; the United States could not be prejudiced by such a course. But he refused to 
take any check, or anything but the money. That was made known to Mr. Morris, who then 
paid the money. Since the suggestion has been made to me that I was mistaken in respect 
to seeing it paid, I have tried to recollect what sort of bills were used, or where precisely 
the money was paid, and I cannot recollect seeing the money, nor can I recollect the place, 
and although the impression is still upon my mind that I did see it paid, yet from these cir¬ 
cumstances I may be mistaken. 

By Mr. Semple : 

Q. What is your habit as to attendance at your office: do you stay there much of the day, 
or do you discharge your part in the preparation of the cases mostly at your own residence. 

(Question objected to by Judge Busteed as irrelevant and not allowed by the committee.) 

Q. You have been asked by Judge Busteed whether you ever invited him to your house. 
What is the reason you never invited him to your house. 

(Question objected to by Judge Busteed as immaterial. Objection overruled by the com¬ 
mittee.) 

A. One of the reasons was that when Judge Busteed first came there, and this matter of 
the test oath was discussed before him, no other business that I recollect was disposed of. 
That was the first time I had ever seen him. As socn as I heard of his arrival I waited on 
him at his hotel. As the question of the test oath was then before him I did not consider it 
proper to invite him to my house at that time. 

By Mr. Eldridge : 

Q. Was it before him in your own case.—A. It applied to all the lawyers, as I understood, 
and to myself, not being able to take the test oath. When, at the succeeding term, (May 
term, 1866,) he held the United States court, this 120 bales of cotton case came up; he 
treated me in the manner I have stated, and in a way which excited grave suspicions in my 
own mind. My wife and grown daughter heard of it and were greatly offended. After that 
time I was willing to appear in Judge Busteed’s court and transact whatever business the 
interests of my clients required. I knew if Judge Busteed was invited to my house he 
would not be treated as I wanted a guest of mine to be treated, and I would not subject my 
family to the mortification of not receiving cordially a person whom I had invited to the 
house. They took a different view of the matter from what I did myself, and it was the 
suspicion I had of guilt, together with the feeling I have stated on the part of my family, 
that prevented me from doing it afterwards. But for these considerations I should have 
been willing to have taken Judge Busteed and treated him as well as I should have done 
any man not connected by ties of affinity or consanguinity. 

Q. Was Richard Goldthwaite paid a salary by Rice, Semple, and Goldthwaite, or had he 
an interest. 

(Question objected to by Judge Busteed as irrelevant, and objection sustained.) 

Q. Was Mr. Semple informed of the bringing of the suit before it was brought. 

(Question objected to by Judge Busteed as irrelevant. Objection overruled by committee.) 

A. I do not think he knew it until after the suit was commenced. I commenced the suit 
myself, made out the papers, and then submitted them to Mr. Elmore and Mr. Keyes. 
Before the writs were issued we consulted in reference to the matter. 

Q. Was he informed of the dismissal of the suit before it was dismissed, and did Mr. 
Semple assent to the dismissal.—A. I dismissed it without consulting Mr. Semple, on my 
own judgment. 

Q. At the time the contest took place over this fund in court, when the motion was made 
to order the gold into the possession of the court, what was the premium on gold.—A. I do 
not recollect; I think it was somewhere about 40. 

Q. Why was that suit dismissed. 

(Question objected to by Judge Busteed. Objection overruled by committee.) 

A. Judge Chilton was on good terms with Judge Busteed. I was on good terms with 
Judge Chilton, but not on speaking terms with Judge Busteed. Judge Chilton made known 
to me that some conversation had passed between him and Judge Busteed about this matter. 
Judge Chilton gave me to understand, and in fact stated explicitly, that while this suit was 
pending Judge Busteed was not in a position to act in the matter of the final adjudication 
of the fund above referred to without constraint, and as Chilton thought he was willing to 
do; that he believed Judge Busteed would do right to all concerned if these suits pending 


150 


against him and Mr. Andrews were dismissed; and that if that was done it would bring 
about a better state of feeling and a personal reconciliation. I stated these views to Mr. 
John A. Elmore and consulted with him about it, and the result was that I dismissed mine 
and he dismissed the others. I did this without consulting Mr. Semple about it at all. 

Q. You spoke of a point argued by Mr. Semple, stating that the motion made by yon to 
suppress a deposition had been overruled by Judge Busteed, and his decision changed on 
hearing the argument of Mr. Semple. State whether Mr. Semple argued that point by per¬ 
mission of the court, in addressing the jury after the deposition had been read, on the ground 
that he had a right to exclude it from the jury if he could succeed in satisfying the court 
that it had been read improperly.—A. I think it had been read to the jury; I am not sure. 

I recollect that Judge Busteed had either decided outright or had intimated that he would 
overrule my motion and would hold the deposition good. It was after that had been done 
that you made your argument. 

By Mr. Eldridge : 

Q. Was the jury impanelled at the time you made your motion.—A. I think it is not prob¬ 
able ; I am not sure. 

By Mr. Semple : 

Q. Does not the rule require that such motion be made before going to trial.—A. In our 
State that is required; I cannot say that it is a rule that is followed in the United States court. 

Q. Was the case in the Supreme Court I cited pretty closely in point.—A. I think it 
was; it covered the point precisely. 

Q. I ask you if there was not a stenographer in court employed by me to take down every 
word that occurred.—A. There was a stenographer by the name of Norcross there, who I 
think I learned from you (and also that he told me himself) was employed by you. 

Washington, D. C January 15, 1869. 

John F. Johnson sworn and examined. 

By Mr. Semple: 

Question. State to the committee whether you were present in Mobile with Josiah Morris 
at the time two checks were given by him to Jacob Wilson; if so, state where it was, when 
it was, and all that passed at the time.—Answer. I was in Mobile, I think, about the mid¬ 
dle of January, 1867; I accompanied Mr. Morris to Mobile, at his request. While I was 
there I saw two checks, I think of $2,500 each, given to a little man they called Jacob; I 
do not know what his other name was. 

Q. Had you ever seen him before.—A. Yes, sir; I had seen him at Montgomery, at the 
session of the court there; he acted as a sort of bailiff, or was engaged in some office about 
the court-house. 

Q. What conversation passed between them at the time the'checks were delivered.—A. 
There was very little said ; the matter occupied but a very few minutes ; it was in the front 
office at the Battle House, where we were stopping. Mr. Morris drew one check for $2,500 
on the house of Walsh, Smith & Co., and the other on the Bank of Mobile; he stated that he 
did not think he had money enough at the Bank of Mobile to cover the entire amount. One 
of the checks, I think, was payable to my order, and I endorsed it; I do not remember whether 
I endorsed the other or not. 

By Mr. Eldridge : 

Q. Did you endorse them in blank, or did you endorse them payable to the order of any 
person.—A. They were blank endorsements. 

Q. Did either of them run to any other person than yourself.—A. I think not. 

By Mr. Semple : 

Q. Was anything said as to what these checks were given for.—A. No, sir; it was a ques¬ 
tion which arose in the settlement of a case that had been decided in Montgomery. That 
was what Mr. Morris said—he wanted him to take these checks ; that he had seen Judge 
Busteed, and that the case was to be arranged for about what the cotton brought. The value 
of the cotton sold was, I think, $5,500 or $5,600. 

Q. Was anything said to you about Judge Busteed’s going up to Montgomery at that 
time.—A. Not at that time, as I recollect. 

Q. State fully the conversation you heard between Mr. Morris and Jacob.—A. I think I 
have stated all I can remember. 

Q. Did Mr. Morris come with Jacob Wilson to where you were.—A. I think they came up 
the steps to the Battle House together; I was standing at the office. 

Q. Was any one present when this conversation took place.—A. I do not recollect; a good 
many were passing and repassing, but no one, as far as I can remember, was paying atten¬ 
tion to what we were saying. 

Q. Could the clerk or any one in the office, by paying attention, have heard what passed.— 
A. If he was standing immediately at the counter he might. I do not recollect that any one 
was present. When I endorsed the check I was standing near the counter, and I took a pen 
from the counter and endorsed it. 

Q. Did you hand them to Jacob.—A. No, sir; but Mr. Morris did. 


151 


By Judge BUSTEED: 

Q. You were a claimant in this same case.—A. Yes; claimant and defendant. 

Q. Was any part of this $5,000 ever charged to you by Mr. Morris.—A. No, sir. 

Q. Has he ever made any claim against you for it.—A. He has not. 

Q. Was that after you and Mr. Powell and Mr. Morris had been in my office.—A. Yes; a 
very short time after. 

Q. Was anything said about this matter while we were together.—A. Not that I heard. 

Q. Was there any conversation about it between Mr. Morris and Judge Busteed, and this 
money.—A. Nothing about the checks or about the money. 

Q. Mr. Morris brought Mr. Powell and you there, and the judge took the examination of 
Mr. Powell, so that if a supersedeas should be granted in the case the sufficiency of his bail 
would be proved and the papers ready for use.—A. I do not know that I can speak as to that. 

By Mr. Eldridge : 

Q. Were you in the office of Judge Busteed on that same day.—A. Yes, sir. 

Q. Before or after the checks were drawn.—A. Before. 

Q. Who was in the office with you.—A. Colonel Powell, Mr. Morris, Judge Busteed, and 
myself, and this little fellow, Jacob. 

Q. Did you hear anything said about the settlement of this judgment in the office of Judge 
Busteed.—A. I heard only this : the judge remarked that he would go up to Montgomery 
that day. Mr. Morris had previously told me what had passed between him and the judge. 
While in the office I heard the judge refer to his going up, and rather invited us out of the 
office, saying that he had some arrangements to make in order to get away that night; after¬ 
wards we had some message that he could not go. 

Q. What did you hear him say.— A. I think the language he used was about this, address¬ 
ing Mr. Powell: “I am going to Montgomery to-night, with Mr. Morris, to try to settle this 
case.” Colonel Powell remarked to the judge he wished he would settle his own in the same 
way when he got up there. 1 do not know what reply Judge Busteed made, if any. About 
that time we were taking a glass of wine. 

Q. Did you hear Jacob say anything about this matter in the presence of the judge, or the 
judge say anything to Jacob.—A. Not a word. 

Q. Plow long was this before the checks were delivered.—A. It was within an hour. 

Q. Had Mr. Morris seen the judge previous to your going there.—A. He had called on the 
judge at his office—so he told me—and came up after me at the Battle House to go over to 
the office with Colonel Powell. 

Q. What did you go there for.—A. I went there as one of the obligors of the bond. The 
ease was against Mr. Morris and myself. We were trying to appeal the case to the Supreme 
Court of the United States, and went to Mobile for the purpose of executing an appeal bond, 
and Mr. Powell went down as security. 

Q. What was the amount of the judgment in the case.—A. I think a little over $30,000. 

Q. Why did Mr. Morris seek to settle that amount for $5,000.—A. The committee will 
understand the matter better if I state the circumstances of the transaction. This cotton 
I had stored in my warehouse; it was cotton which once belonged to the so-called confeder¬ 
ate government. I had a large claim against the confederate government for storage of 
cotton. I wanted to realize something for it. I called on the agent at Montgomery, Mr. 
Parley, who said he was not authorized to pay anything, and referred me to Mr. Meminger, 
secretary of the treasury of the Confederate States. I wrote to Mr. Meminger on the sub¬ 
ject, but got no satisfactory reply, from him. I then had notice served upon Mr. Meminger 
that if, after a certain time, my claims were not settled I would sell enough cotton to 
cover the amount; which was customary with warehouse-men at Montgomery. I put this 
lot of cotton, of 1‘20 bales, upon the market. It was purchased by my broker and still 
remained in my warehouse. When the order of the confederate government was promulgated 
for the destruction of all this and other cotton, I removed this lot to some brick buildings I 
owned, about half a mile out of town ; I stored the cotton there for security. About the 
time General Wilson, of the federal army, occupied Selma and was advancing on Montgom¬ 
ery, Mr. Morris remarked to me, that he thought he could obtain, or bad, protection papers 
for that cotton. I remarked to him that if he could save it, I would give him one-half the 
proceeds when sold. Not long after that some capitalists were there, who bought this cotton 
at 10 cents a pound. The lot amounted in the aggregate to $5,500 or $5,600, which was 
paid into the banking house of Mr. Morris, and he gave me one-half the proceeds, or gave 
me credit on account. 

Q. And it was that amount for which he was willing to pay, in order to settle the matter.— 
A. Yes, sir. 

Q. Will you state again, precisely, what the judge said about his being interested in the 
matter for which he was going to Montgomery—A. Mr. Smith’s name was mentioned in 
connection with it; I do not remember what was said; I think Mr. Morris probably 
remarked to the judge that he could not get Mr. Smith to do anything at all, and the judge 
replied that if he was disposed to act fairly he ought to be willing to do it; that he thought 
he could make him do it. I think that was the substance of what the judge said at the time. 
The Mr. Smith referred to was J. Q. Smith, the district attorney of the middle district. 


152 


Q. Wliat reply did Mr. Morris make to that.—A. If there was auy I have forgotten it. 
We had taken a glass of wine with Judge Busteed and were about to leave the office. 

Q. Did Mr. Morris leave the office then.—A. I think we all went out ot the office together, 
with the understanding that Judge Busteed was going up to Montgomery that night with us. 

Q. Did either you or Mr. Morris go back to the office that night.—A. No, sir. 

Q. Did you see anything further of Jacob.—A. Yes ; a half hour after that he came and 
said the judge could not go up that night. The message he brought was to Mr. Morris. 

Q. Did Jacob call back Mr. Morris at any time when you were going away from Judge 
Busteed’s office.—A. I do not remember that he did. 

Q. Where did you next see Jacob Wilson.—A. At the Battle House. 

Q. When he said the judge could not go to Montgomery, what else did he say.—A. If he 
said anything else I do not remember it. Mr. Morris said that he was very sorry for it, and 
Jacob remarked that the judge would go up the next night. 

Q. When did you see him next.—A. I do not think I saw him until the checks were 
delivered; probably not till half an hour after. 

Q. Did you see him when he approached Mr. Morris at that time.—A. Yes, sir; we were 
together. 

Q. What did he say when he first came.—A. I cannot charge my memory with the lan¬ 
guage used now. 

Q. Had anything previous to this been said about money paid or checks delivered that 
night.—A. I may have heard Mr. Morris speak of it. 

Q. Did Jacob say anything about the checks the first time you were together, after you 
left the judge’s office. A. I do not remember that he did. I think Mr. Morris remarked that 
he had the checks with him. 

Q. What did Jacob say.—A. I think Jacob said that Judge Busteed remarked that he did 
not want his name in the checks at all. 

Q. That was when the checks were delivered.—A. Yes, sir. 

Q. When Mr. Morris told him he had the checks drawn and in his pocket, what did Jacob 
reply.—A. He must have made some reply, but I cannot now say what it was. 

Q. Where was Jacob when he said the judge did not want his name in the checks.—A. At 
the office of the Battle House. That was at the time Mr. Morris asked me to put my name 
on the checks. 

Q. Had the checks been drawn previous to Jacob making this remark.—A. I think he had 
already written them and had them in his pocket. 

Q. Who were they drawn payable to.—A. I am not sure whether they were drawn pay¬ 
able to order of anybody, or simply to bearer, and I do not know the purpose of having my 
name on them unless it was to establish the identity of the checks in Mr. Morris’s private 
account with the bank, he being a banker. 

By Mr. Semple : 

Q. You say when this cotton was sold Mr. Morris paid you one-half the money ; had he 
advanced you any money before that time on the cotton.—A. I was owing him some money. 
My bank account was overdrawn and I had no money. 

Q. Had your warehouse been destroyed.—A. It had, with everything in it, when the town 
was occupied by the United States forces, leaving me without any money or means whatever. 
I had a running bank account, and was checking every day when Mr. Morris allowed me to 
overdraw my account. 

Q. About the time of the surrender, and the occupation of that portio* of the country by 
the United States forces, did you, on a settlement of your affairs, turn out to be insolvent.— 
A. Yes, and I took the benefit of the bankrupt law. 

Washington, D. C., January 19, 1869. 

General Wager Swayne, United States army, being duly sworn, testified as follows: 

By Mr. Semple : 

Question. Will you state to the committee whether you know who it was who first sug¬ 
gested an effort to impeach Judge Busteed, and whether this action was suggested on account 
of his loyalty. 

(Objected to by Judge Busteed and objection sustained.) 

Q. Will you state whether you at any time offered to employ Mr. Semple as counsel to 
prosecute or prepare for a prosecution of the impeachment of Judge Busteed. 

(Objected to by Judge Busteed.) 

Q. State to the committee anything known to you in relation to the charge embraced in 
the first specification of the second charge against Judge Busteed as to his evincing a dis¬ 
position and effort to divert the land dedicated to the use of the Freedmen’s Bureau by the 
act of Congress to his own use or the use of other persons than those contemplated by the 
act. 

(Objected to by Judge Busteed, on the ground that this subject was contained in Judge 
Chilton’s testimony. Objection overruled.) 

Answer. The recollection I have of the matter embraced in the specification is, that after the 
passage by Congress of the law vesting the property referred to in the commissioner of the 


153 


bureau, General Howard, for the purposes named in the act, I found that that act was treated 
by the court as a nullity. I took considerable pains, both personally and by counsel, to bring 
the act to the notice of Judge Busteed, partly in consequence of allegations made to me that 
it had not come to his knowledge, and partly because of the general fact that it was treated 
as a nullity. The statements made to me after it had been certainly brought to his knowl¬ 
edge in a conversation between himself and myself, to the best of my recollection, were two¬ 
fold ; one by himself, the precise tenor or detail of which I cannot remember, but the result 
of which was that it was his judgment that the property must go on to sale, and after the 
costs and such charges as accrued in the court had been disposed of, that then the surplus of 
money would be at the disposal of General Howard, or of the bureau. The other allegation, 
which I do not remember to have come directly to me from Judge Busteed, although it is my 
impression that it did so come, was, that this property having been libelled, in some cases 
before and in other cases after the fact of seizure by the bureau, in conformity with the law 
or the previous order of the President, which the law was designed to reaffirm—that this 
property having been libelled by the disirict attorney on behalf of certain unknown infor¬ 
mants, who would be entitled, if the prosecution went to a successful issue, to one-half of 
the proceeds of this property, that these informers, by such libel, had acquired a vested right 
of which they could not be divested by any act of Congress, the result of which would be the 
*ame as in the former instance, to bring the property to sale. 

By Mr. Eldridge : 

Q. In reference to that seizure, was it after the act was in force.—A. My impression is that 
it was so alleged; but the allegation was general, and not as to specified property, as I now 
remember. 

By Mr. Churchill : 

Q. Was not all this property libelled after you, as assistant commissioner, had taken pos¬ 
session, or were actually in possession of it.—A. My impression is that it was ; as to the facts 
in detail, I have no reliable information. The result of the matter was that I employed 
counsel to defend, as I conceived, the rights of the bureau in the court before the judge, my 
impression being at that time that the judge was certainly no party to the fraud which I con¬ 
ceived to be evident in the matter. The final result was a conviction on our part that so long 
as the judge was in court it was of no use to contest any claim tending to vest anything in 
the bureau. Pending that feeling, Congress passed an appropriation for the support of the 
bureau, the lack of which was the original occasion of all this property business, and when 
they passed that appropriation we then felt no longer any special interest in the matter, and 
let it drop. 

Q. Until that appropriation passed, you relied on that property for the support of the 
bureau.—A. No, sir; I would like to state that the action of the bureau with this whole prop¬ 
erty business was this: that Congress created the bureau without any appropriation for its 
support. I was^sent down there under the simple instructions to find out what ought to be 
done, and do it. This was about all the instructions I had. I Avent down there, and the first 
difficulty which beset me was the absolute want of funds. I came here in October, 1865, to 
see what could be done to relieve that disability. In the absence of General Howard I filed 
a request with the Secretary of War, or rather a statement, that there was certain property 
of the late Confederate States which was already in possession of the United States by cap¬ 
ture, which I did not consider could be made properly a subject of any judicial proceeding; 
that that property might be turned over, as it was unquestionably the property of the govern¬ 
ment, and applied as captured property to the support of the bureau. My application was 
considered in cabinet, and, I think, on the 10th of October, 1865, the President made an 
order directing the several military agents of the government in Alabama to transfer to me 
this property, to be applied for the support of the bureau. I was very anxious to keep 
myself and my agents free from all handling of such things. I accordingly made an appli¬ 
cation to the Secretary of the Treasury requesting that, inasmuch as this property had been 
originally seized by his agents, they might *go on and dispose of it, and, whenever they 
got through with their sales, transfer the net results to my disbursing officer, who was a 
bonded paymaster of the regular army, so that it might be w r ith us a simple question of 
accountability for funds defined in certain provisions. That the Secretary declined to do. I 
then got his agents to go on and complete the sales, as the agents of my disbursing officer. It 
was obvious that there was a difficulty about the title of real estate vesting under these cir¬ 
cumstances. I then wrote a note to General Howard, as the result of which Mr. Wilson 
introduced and passed this 12th section, which is referred to. Then, after that, judicial pro¬ 
ceedings were prosecuted against this real estate, and the ground which I took was that it 
seemed to me to the last degree improper that real estate, of which the title was on record 
in the United States, which Avas actually in possession of the United States, and the title to 
Avhich had been transferred by act of Congress to a specific bureau, should be made the sub¬ 
ject of judicial proceedings under a law giving one-half of its value, A\ r hen sold, to a person 
who had merely called the attention of the district attorney to the fact that it Avas the prop¬ 
erty of the United States. It seems to me that they might just as Avell libel and sell it for 
themselves. 

Q. What property had you in your possession, that Avas in possession of the officers of the 


154 


bureau, so libelled.—A. There was the property called the Briarfield Iron Works, which was 
sold by the agent of the Secretary of the Treasury, under the nominal charge of my disburs¬ 
ing officer; that, I think, was afterwards libelled, and the title to that was affirmed by act of 
Congress. 

Q. In that case did the informer receive his proportion.—A. Those proceedings are still 
pending; I believe they were, the last I knew of them. There was then this property at 
Selma, which was afterwards sold by the marshal. 

Q v And the proceeds divided.—A. I never knew what became of the proceeds. I do not 
know whether there was other real estate or not. I recollect, however, one case of a house 
which we sold at Greenville, Alabama, and got the money for. 

By Mr. Eldridge : 

Q. Did you understand that the title to private and individual property was transferred by 
the act of Congress to the bureau.—A. Certainly not. The only property to which I referred, 
was property which had been made by deed of record to the Confederate States, and which 
I conceived upon the extinction of the Confederate States, passed by title of equal validity 
to the United States, as its legitimate successor. 

By Mr. Churchill : 

Q. And this property was in that condition.—A. It was understood by me to be in every 
case in that condition. 

By Mr. Eldridge : 

Q. Did you specify other property.—A. I do not remember wdiether there was other real 
estate. There was a house at Greenville, as I stated, that was afterwards sold by the marshal, 
and the man was forced to buy it in and pay for it a second time. 

Q. Sold under the order of the judge.—A. Yes, I understand so—sold as advertised by 
the marshal. 

Q. Is there any other property that you remember.—A. Well, there were some others, but 
do not recollect them. 

Q. What was the value of the property you have mentioned.—A. The Briarfield prop¬ 
erty was sold for $45,000. What the property at Selma was sold for I do not remember. I 
think it was valued at $8,000, but what it sold for I do not know. 

Q. What did the house at Greenville sell for.—A. I think it sold for $000. 

Q. That didn’t include the land.—A. No, sir; the house was all. It is true there were 
some ships transferred under the order. Three iron blockade-runners ivere transferred under 
that order. One of these was sold by my disbursing officer, I think, for $4*2,000, and removed. 
I never knew that vessel was afterwards seized by judicial process. I do not know whether 
my disbursing officer was Colonel Wright or Colonel Beecher, both paymasters of the army. 
The other two were held over, and I was advised that the judge was of opinion that a valid 
title to them would not pass by sales such as I had made. I said if that is so it would be 
better that they should go to the court, and they were taken in custody of the marshal, with¬ 
out opposition on my part. 

Q. Do you know whether they were ever sold.—A. I think one of them was, but it is 
a mere matter of hearsay ; I think it was sold and bought by the district attorney at Mobile— 
the man who shot Judge Busteed. 

By Mr. Semple : 

Q. Do you know whether the sale was confirmed by the judge.—A. I do not. 

By Mr. CHURCHILL : 

Q. These conversations referred to, you had with the judge while these proceedings were 
pending in his court.—A. Yes, sir. 

Q. Aud before any decision had been made.—A. No; I think before and after. I think I 
had conversations with the judge touching them, certainly after I had given up the idea of 
getting the proceeds from them. 

By Mr. Eldridge : 

Q. State all the conversations you had with the judge in reference to the rights of his 
officers and the informers in this property, seized as you have stated.—A. I could not do that. 

Q. As fully as you can, then.—A. I saw the judge repeatedly, and occasionally these matters 
were mentioned between us. I recollect one conversation, in which he stated he had not 
received a copy of this act ot Congress. I told him then, to the best of my recollection, that 
I was surprised to hear that, as he had replied to a letter of mine in which I had enclosed a 
marked copy of the law—a general order of the War Department—with a pen mark drawn 
against this section. 

By Mr. Churchill : 

Q. Was the section copied in full in this order —A. That is my impression—this J2th sec¬ 
tion. I think the lav/ for the continuance of the bureau was published in general orders. I 
took a copy of it, marked it distinctly, and enclosed it in a letter to the judge. 

By Mr. Eldridge : 

Q. When you expressed this surprise, what did the judge say to you; what excuse did he 
make, or what explanation did he offer.—A. Simply that such and such was his opinion. 


155 


Q. But wliat did he say with reference to this section not having been received by him.— 
A. I do not know that anything was said on that point. My impression is the matter dropped 
theie. I know the fact of his making that assertion was, at the time, a subject of conversa¬ 
tion between my counsel and myself, because my counsel gave me to understand that he also 
had sent him a copy in such a way that lie must have received it. 

By Judge Busteed: 

Q. State your counsel’s name.—A. Judge William P. Chilton. 

Witness. Then I had other conversations with the judge, in the course of which—well, I 
recollect my saying to him once in his office, or in the private room of the district attorney, 
in the presence of one or two gentlemen—I said to him, in all kindness, that it w as indis¬ 
pensable to me that he should get rid of these men; that if he allow ed them to go on in the 
way they were doing, they Avould taint his judicial honor He said to me, “They cannot do 
that. ’ I said no more about the matter and let it go. I Avas speaking at that time of Mr. 
James Q. Smith, particularly, and I think, perhaps, of the United States commissioner, named 
Wyatt. His performances w r ere on a smaller scale; simply collecting costs to which he Avas 
not entitled, according to common report. I had another conversation with the judge after 
these matters were pretty much closed. We Avere talking about the relations and personal 
kindness between us, and I told him I certainly desired such relations. He had come to me 
about political matters twice, and expressed a desire for co-operation between us. I told him 
that, on the one hand, 1 had not the slightest desire to check him in any scheme for his own 
political advantage—that I w r ould not lay a finger in his way; that, on the other hand, I 
could not co-operate with him, or any man, because I had no schemes of that kind myseif; 
that, while I might take wdiat came in my w’ay, I did not intend to crook my finger for any¬ 
thing in that direction. We talked in that w r ay for about an hour, and he finally used this 
expression, “I might as w r ell talk to a stone-w r all.” He then came back to me a second 
time, and then finally something was said about friendly relations between us, and I told 
him I desired such relations, and I wanted to take him out riding with me. He had had a 
pretty violent quarrel with the colored people in the State and Avas anxious to make it up. 
There was a picnic given near Montgomery by the colored people, and as I was in charge of 
that people in the State, I went and took a wagon and took him out there, and they received 
him, coming with me, kindly, and he made a speech. We had some conversation at that 
time about the officers of the court, and about his own relations, and I told him then that I 
desired friendly relations with him, and that if he would get rid of these rascals that infested 
his court, and would pursue a different course, I would take hold of it; that I did not think 
it w r as too late for him to make a good and honorable standing for himself; that he could 
pursue such a course as all men ought to approve; that he must do this if he Avould leave to 
his children the reputation of a just judge, which was better than any fortune; and from 
what he said I was satisfied that it w>as his determination to do so. I parted wffth him with 
the kindliest feelings. I had occasion to go that night, or the next, to Atlanta—was gone 
tw'O or three days. When I came back, such statements Avere made to me about his beha¬ 
vior in court, that I found I could not support such men any longer, as I thought. Subse¬ 
quently to that he came to my room once or twice, in Montgomery, and I treated him 
politely and kindly. But when the republican convention met at Montgomery, and the 
motion was made to invite him to a seat in the convention- 

(Objection raised by Judge Busteed.) 

Witness. I was going to speak of a letter which I wrote to the judge, and the circum¬ 
stances which led to it. It became necessary then that I should take sides for or against 
him. I did not want to seem guilty of insincerity to him, by receiving him kindly in my 
room and going back on him in public. I therefore wrote him a note, stating that upon 
my return from Atlanta I had learned, to my surprise and chagrin, but from sources which 
I could not disbelieve, that his behavior on the bench, upon days which I mentioned, had 
been such as necessarily cut off from him any further support on my part; aud that is the 
last of my connection with the judge in any way. 

By Mr. Churchill : 

Q. Did you say in this conversation with the judge at the picnic, that if lie would cut 
loose from rascals that infested his court, &c.—A. That is what I had in my mind ; w hether 
I used precisely that phraseology or not I cannot say. The purport of it was that he must 
get rid of certain people, whom I spoke of as notoriously dishonest. 

Q. Did you name to him those persons you referred to.—A. James Q. Smith was specifi¬ 
cally named ; I do not knoAv w'hether Wyatt or any other person was specifically named 
or not. 

Q. What conversation did you have with him at that time, or at any other time with regard 
to James Q. Smith, in which you gave him information in regard to his character, or called 
his attention to any charges that affected the character of James Q. Smith.—A. I suppose 
I must have had first and last a dozen, perhaps a dozen and a half. The specific times or 
words I cannot mention. The judge knew' that I had favored the removal both of Mr. 
Hardy and Mr. James Q. Smith. These conversations W'ere, a half a dozen ot them per¬ 
haps, subsequent to the removal of Mr. Smith. 



156 


By Mr. Eldridge : 

Q. What charges did you make to Judge Busteed, or what charges did you speak to him 
about in reference to James Q. Smith.—A. Principally his interference with bureau matters ; 
but his general conduct was the subject of these conversations. 

Q. What general conduct—give us something specific.—A. Well, I think his compro¬ 
mising of cotton cases was made mention of between us. Whether I ever stated much to 
the judge about the collection of costs, I do not know. That was a matter understood, but 
it was done by order of the court. 

Q’ What was said by you to the judge about the compromising of these cotton cases.— 
A. That I cannot tell. 

Q. What about the costs.—A. I could not say specifically what it was. 

Q. You say the judge knew your opinion of James Q. Smith.—A. Yes, sir. 

Q. What opinion of yours did he know with reference to him.—A. He knew that I con¬ 
sidered Smith a scoundrel. 

Q. In what regard.—A. Both as dishonest and ferocious. I recollect on this ride I took 
with the judge, mention was made of a letter of Mr. James Q. Smith, addressed, I think, to 
the assessor of internal revenue, in which language was used exceedingly vulgar and pro¬ 
fane, and I spoke to the judge of the character of a man who could possibly write such a 
letter. 

Q. Why did you talk to the judge about this matter.—A. Mr. Smith was district attorney, 
and the judge was judge of the district court. 

Q. What was there between tSem that led you to warn him against Smith.—A. Simply 
this: that I considered it necessary to the people of Alabama that the district attorney and 
the marshal should be got rid of; I thought them a curse to the people of the State. I didn’t 
think that the judge was a party to their conduct, and I thought if the judge could be aroused 
to appreciate it that he would desire their removal instead of their retention ; and by their 
removal and retention I did not mean simply their removal or retention in office, but that he 
would want them away from his court as principal actors in it. 

Q. Did you know of any intimacy between the judge and the district attorney, other than 
that which would necessarily result from their official relations.—A. How far an intimacy 
from their official relations would go, I cannot say. But the judge lived in Montgomery, 
part of the time in Mr. Smith’s rooms, and there was, to all appearance, kindly personal 
relatins between them; but I should not have set that fact down as improper. 

Q. That would not necessarily result from official relations.—A. It might or it might not, 
according to the personal like or dislike of the parties. It was not inconsistent with 
honesty. The judge spoke to me repeatedly, and with a great deal of impatience, of Mr. 
Smith’s ignorance, and used to complain to me that he was forced to be district attorney 
aud prosecutor too, because of Smith’s ignorance. 

By Mr. Churchill : 

Q. Was official corruption one of the charges you made against Smith, in conversation 
with the judge.—A. Yes, sir, certainly. 

Q. What did the judge say in regard to that.—A. I do not know that he ever said any¬ 
thing, so much as that he never admitted it. 

Q. Did he defend Smith in that conversation you had with him.—A. I do not think he did. 

Q. So far as you know was there anything in their intercourse at all except what is usual 
between persons holding the official relations which they held with each other.—A. Only 
this, that the conduct, or rather the course, of Mr. Smith in court, the facilities which he 
enjoyed, and the conduct of the judge towards him iu court, I understood to be such as 
could be accounted for on no other principle than that there was a corrupt alliance between 
them; it was that which finally determined me to speak to him as I did. 

Q. How long was it after the subject of Smith’s official corruption was talked about be¬ 
tween yourself and the judge that Mr. Smith was removed from the office of district attor¬ 
ney.—A. I should think three or four months; I could not say precisely. 

Q. Did the judge oppose that removal.—A. My understanding was that he did, strenu¬ 
ously, after this conversation. 

By Mr. Eldridge : 

Q. You emphasized the expression that you did not think the judge was a party to any 
of their corruptions.—A. I ought to have said that I did not know it. I made up my mind 
finally, or rather came to the conclusion that the judge must be mixed up in it; at any rate, 
the inference 'vyas so strong in my mind that I felt I did not want anything more to do with 
him; but his approaches to me afterwards for personal and friendly relations were of such a 
nature that I said to myself and said to my friends: “Now, I don’t know that this man is 
corrupt, and if he will from this time carry himself straight I think we can save him, and if 
we can we had better do it.” 

Q. Before or after the removal of Smith.—A. Months after the removal of Smith; that 
was said within a few weeks prior to the time I wrote to him as I did. 

Q. Have you changed those opinions now—the opinions which you had that he was not 
mixed up with it.—A. I have; I am now of the opinion that I was when I wrote him that 
letter. 


157 


Q. What caused you to change your opinions.—A. Well, I might say that what was told 
me on my return from Atlanta was the straw that broke the camel’s back ; I had tried to be¬ 
lieve the judge innocent up to that time ; then I could not; and when I could not I acted. 
Since that time I haven’t given it any definite thought one way or the other ; I was removed 
from Alabama very shortly after that. I might say, also, that my indignation was very 
strongly moved after that by the judge’s imprisonment of the mayor of Mobile, Mr. Horton, 
who was a warm personal friend of mine, and whom I believed, and still believe, to be an 
entirely loyal and honest man. 

Q. Did you give a letter to Judge Busteed to your father.—A. I did. 

Q. When was that.—A. I cannot say when it was, exactly. 

Q. Was it before or after this.—A. It was, of course, before I wrote to him that I did not 
consider him an honest man. 

Q. But in point of time as regards your return to Alabama, when “the camel’s back was 
broken.”—A. The letter was before that; oh, yes. 

Q. Have you any knowledge that the judge in any way shared in the proceeds of any of 
that property that he received.—A. I have not. 

By Mr. Churchill : 

Q. Do you know anything as to the distribution of the proceeds of the sales of any of 
that property.—A. I do not. 

Q. Did you talk with the judge upon that subject—whether he did or did not receive, or 
whether he shared in any way in the distribution of the proceeds.—A. Oh, no. 

Q. Did the judge ever say anything to you on the subject in any of these conversations.— 
A. My impression is that in one of these conversations the judge did say something like 
this : “ Thank God, my hands are clean.” 

By Mr. Eldridge : 

Q. What were you then speaking of.—A. Of the corruption of these men about his court, 
and its necessary effect on his character and reputation. 

Q. Did you know Jacob Wilson.—A. Yes, I think I did; that is to say, there was a man 
who acted as the judge’s body servant and sort of deputy marshal at Mobile, who was called 
Jake, and my impression is that he was called Jake Wilson. 

Q. Did you speak to the judge at any time of his conduct or participation in these mat¬ 
ters.—A. 1 do not think I ever did. 

By Mr. Churchill: 

Q. Do you remember any other person whose conduct was particularly mentioned between 
you and the judge except James Q. Smith.—A. Oh, yes—Hardy; the judge complained to 
me of my having had Hardy removed, which I had. 

Q. Give the conversation that occurred between you and the judge on this occasion in re¬ 
lation to this subject.—A. He simply complained; I told him how necessary I had thought 
it to be, and something was said in that connection. He had a good deal to say of the 
amount of work that I would do in such a case if I went at it. He simply spoke of me ; he 
said he had never met or known a man who, if he undertook a thing of that kind, would do 
so much patient labor in putting it through. I said to him, rather significantly, that that 
was only a preliminary skirmish. 

By Mr. Eldridge : 

Q. What reasons did he allege, or why did he complain.—A. He said, “ You have had my 
marshal removed,” as if he had not wanted it done. 

By Mr. Churchill : 

Q. What reasons did you give why he ought to be removed.—A. His rapacity. I probably 
spoke of him as the most rapacious person I had ever known in his official capacity. 

Q. What did he say in answer to that charge of yours against Hardy.—A. I do not know. 
I cannot say anything definite was said. All these things were merely remarks interspersed 
in conversation. 

By Mr. Eldridge : 

Q. Did he at any time defend either Smith or Hardy when you were talking about their 
removal; if so, in what manner.—A. I do not remember his going into any specific defence 
of them at all. 

Q. Did he substantially claim they were honest men.—A. I do not think he did ; I do not 
remember his doing so. 

By Mr. Semple: 

Q. Were any of the proceeds of the sales of any of the lands spoken of b}’ you as sold by 
the marshal, paid into the bureau.—A. Not to my knowledge. 

Q. What was the co-operation with you which the judge proposed. Was it co-operation 
to obtain the election of each of you to the United States Senate. 

(Objected to by Judge Busteed. Objection overruled.) 

A. That was the co-operation proposed. 

Q. Did he in any of his conversations with you attempt to explain away his affiliation 


158 


with the secession party in Alabama. (Objected to by Judge Busteed. Objection over¬ 
ruled.) Did he say anything in relation to the charge of his having been affiliated with the 
secession party in Mobile.—A. Not that I distinctly remember. 

Cross-examined by Judge Busteed : 

Q. There was a very considerable controversy between you and Mr. Smith during the 
whole time of your residence in Alabama, was there not, and up to the time of his removal 
from the office of district attorney.—A. I certainly disliked Mr. Smith cordially, and thought 
he ought to be removed, but not at the beginning. Then my relations with Mr. Smith were 
very cordial, and the lack of cordiality grew out of his official course towards the bureau. 

Q. The contest on the part of Mr. Smith was that property should be libelled and sold by 
judicial decree, and your view of it was that the United States district attorney should not 
file informations against them, but that you should take it and dispose of it.—A. That was 
certainly so as to the real estate. 

Q. This house in Greenville that you say was sold and brought $600, had you ever made 
any application to the court on that subject, either yourself, or by your attorney, Judge 
Chilton.—A. My impression is that I certainly went to my attorney about it. Whether he 
went into the court, or whether we were governed by the conviction that it was of no use, I 
do not remember. 

Q. You do not know whether any application was made to the court on that subject.—A. 

I do not distinctly remember. Certainly the fact was brought to the notice of the marshal. 

Q. How soon after Judge Busteed’s advent into Alabama did you begin to complain to 
him of Smith and Hardy.—A. Well, that I cannot distinctly remember ; my impression is 
that it was in the early part of the year 1866. 

Q. And when was Smith removed ; do you know.—A. I do not. 

Q. When was Hardy removed, do you know.—A. I do not, definitely; during the year 
1866, however, I should say. 

Q. Which was removed first, do you know.—A. Hardy. 

Q. You did not speak to Judge Busteed about any charges made against Hardy before his 
removal, did you.—A. I do not know that I did. 

Q. You didn’t tell him, or furnish him in writing with a copy of any of the charges made 
against Hardy upon which his removal was based, did you.—A. Not that I now remember. 

Q. Is not it the first thing, so far as you know on that subject, that Judge Busteed met 
you in Montgomery and complained of the removal of Hardy to you, and you stated you had 
as good a man for the place, and named General Healy, the present marshal.—A. I do not 
know whether that was or not so; my recollection of the removal of Hardy is that some 
gentleman, and I think it was Major Semple- 

Q. Whom do you mean by Major Semple.—A. This gentleman here-came to me and 

stated that petitions had been got up for the appointment of General Healy, who was just 
then mustered out of the service, to be United States marshal vice Hardy ; there was at that 
time a great deal of feeling in the State—with which I sympathized—against the officers of 
the court, growing out of the collection of what was considered excessive costs ; for this, 
and perhaps other reasons, I was asked whether I would lend my aid to the removal of 
Hardy and the appointment of Healy, and to the best of my recollection I replied that I 
would do so, and did ; I do not remember that that was brought in any way to the notice of 
Judge Busteed, or that Judge Busteed was there at the time, or that any interview occurred 
between the time that it was mentioned and the time that it was done ; I do not recollect of 
having seen Judge Busteed at any time along there. 

Q. Don’t you recollect that on the first occasion when you took Judge Busteed out to 
drive in your wagon in Montgomery, that Judge Busteed told you he sympathized with 
Hardy on account of his troubles during the rebellion, and his well-known adherence to the 
government.—A. I have an impression of that sort, though not a very distinct one. 

Q. Don’t you recollect telling me in answer that this was a question between a thief and 
a pack of rebels.—A. No ; I do not. 

Q. Will you say you did not say that.—A. No, sir; I do not remember saying anything 
of that kind ; I will not say I did not, because I do not remember the conversation distinctly; 
it took place nearly four years ago. 

Q. Semple was employed to come to Washington on this business of the removal of 
Hardy.—A. I have no knowledge that he was. 

Q. Any information from him on that subject —A. I have not. 

Q. Was he employed to come to Washington on the subject of Smith’s removal.— A. I 
have no knowledge that he was. 

Q. Any information from Semple on that subject.—A. I have none. 

Q. Was there any fund gotten up for the removal of either Hardy or Smith, to which you 
contributed.—A. Not that I ever knew of. 

Q. Or to which you were asked to contribute.—A. Not that I remember; but I can make 
a remark upon this subject, however: after the imprisonment of the mayor of Mobile by 
Judge Busteed, and the delivery of the charge of Judge Busteed, which was printed in the 
Mobile Times, and which I presume is of record before you, I was strongly influenced by a 
feeling that it was necessary to successful reconstruction, and on other grounds, that Judge 




159 


Busteed should be impeached ; I had about made up my mind to undertake it; the plan of 
operations which I proposed was to file with the Attorney General such proofs as I conceived 
to be lying about there, and to get him—as I felt sure that I could—to allow me, from his 
contingent fund, a sum sufficient for the employment of a lawyer to collect and collate the 
evidence upon which to base a proceeding like this ; I stated my views and purposes to 
Major Semple with a view to employing him- 

(Objection raised by Judge Busteed. Objection overruled.) 

Witness. I proposed to Major Semple to be employed as such counsel; his reply was, 
that while he would render me any volunteer assistance which his professional occupation 
would permit, he could not accept a retainer—but he recommended another gentleman— 
upon the ground which he alleged to me in private conversation between us two, viz : That 
he had a personal feeling of hostility to Judge Busteed; and that he had made it a rule, 
from which he did not propose to deviate, never to accept a retainer to be employed as coun¬ 
sel in any case against any person with whom he had such personal feelings. 

Q. Is that your explanation.—A. Yes; I thought that was a full reply to this question. 

Q. When were the Briarfield Iron Works sold.—A. I cannot say definitely; that appears 
on the record. 

Q. About when.—A. My impression is that it was in ti e early part of the year I860—the 
last of 1865 or early in 18(36. 

Q. Sold under your direction.—A. Yes, sir. 

Q. Has any adverse action been taken by the court as to your action, and if so, what.— 
A. I believe that the property has been subsequently libelled in the court. I know that the 
parties have been at Montgomery attending court and employing counsel, and in tribulation 
about it. 

Q. Has any action that you know of, adverse to your sale, been taken by the judge of the 
court.—A. My impression is that no official judgment has been made. 

Q. Can’t you answer that question more directly. To your knowledge, has any judg¬ 
ment of the court been rendered adverse to your judgment of the property.—A. The only 
knowledge I have is that after the sale and transfer of the property I was advised that the 
district attorney had declared that he would proceed to sell the property, as then no action 
bad been taken by me ; that proceedings touching the title of the property were pending in 
the court, and pending these proceedings, or just after the question was raised, I got Mr. 
Speed, the Attorney General, to procure the passage of a joint resolution affirming the title 
of the purchasers from me ; that the proceedings were continued, and the parties were at 
Montgomery. I was not in the court, and do not know the precise nature of the proceedings. 
But I know parties were at Montgomery, and were in considerable tribulation about it; were 
employing counsel, and were appealing to me, and that the matter when I last heard of it 
was still pending in the court for the condemnation of the property. 

By Mr. Eldridge : 

Q. Did you talk with the judge about these troubles and tribulations at all, or speak about 
it.—A. Early in our intercourse I did, after the sale, but not later. The judge had expressed 
to me his decided conviction that the properties of this class must be sold, and the surpluses, 
he said, if any remained, might be turned over to the bureau. 

By Mr. Churchill ; 

Q. Did you call his attention to the joint resolution affirming the title.—A. No, sir; I do 
not remember to have had any intercourse with the judge on that subject after the passage 
of the joint resolution. 

By Judge Busteed: 

Q. Who bought the Briarfield property.—A. Mr. F. S. Lyon, of Demopolis. 

Q. Do you know whether it became very soon a joint stock concern.—A. I believe that 
it did. 

Q. Do you know who are the stockholders of it, or were.—A. I never did. I knew that 
Mr. Lyon was a stockholder, probably president, though I do not know that fact. I know 
General Gargas was the secretary of the concern, and that is the extent of my knowledge 
in reference to it. 

Q. Do you recollect Judge Busteed saying to you, in Mobile, upon the occasion when 
you were complaining of the dishonesty of Mr. Smith, that he, the judge, knew nothing 
about it, and that it was very easy to make charges of dishonesty, and that charges were 
made against you of dishonesty in connection with the Briarfield Iron Works.—A. I recollect 
Judge Busteed saying that Mr. Smith was bitter against me, and that he asserted that I had 
received—for some participation in the sale, or some influence in it—that I had received a 
large interest in the stock of that company as a compensation; and I recollect saying to the 
judge, also, that I was indifferent to a statement of that kind. It is not improper for me to 
say that it was utterly without foundation. 

Q. To whom was the ship sojd that was sold at Mobile under your direction.—A. I do not 
know. My impression is that it was sold to parties from New Orleans. But I had no part 
in it; all I had to do with the sale- 

Q. This ship that was sold by you, or under your authority, was a blockade runner.—A. 
That was my belief. 




160 


Q. It was on that ground that seizure was made of her, and that you detained and sold 
her.—A. I did not seize it; it was turned over to me by the Treasury Department as cap¬ 
tured property. 

Q. And no decree of a court of admiralty was ever had in her sale.—A. Not that I know of. 

Q. And the Freedmen’s Bureau undertook to transfer a title to the ship by a sale ot the 
property under the direction of the bureau.—A. The Freedmen’s Bureau received treasury 
property, including that ship, with authority to sell it, and set it up at public auction and 
received the proceeds. 

Q. Don’t you know that the statute about captured property expressly excludes ships.— 
A. I do not remember the statute perfectly. My impression is now that my attention was 
afterwards called to that peculiarity in the statute. I did not know it at the time of the sale. 

Q. You were a lawyer by profession before you entered the army, and practiced law.—A. 
I have practiced law to a limited extent. I never tried an admiralty case. 

Q. In connection with the statement of Judge Busteed to you about all these men whom 
you assailed—that they could not tarnish his judicial honor—didn’t he also state that no 
man could do that but himself.—A. I think lie said no man could do that; I do not remem¬ 
ber “ but himself.” 

Q. Can you now state whether, at the times of these conversations, when you talked about 
political preferments and friendly relations, wheu you were out riding—can you now state 
whether that was after the removal of both Smith and Hardy.—A. It was. 

Q. And long after, wasn’t it.—A. A considerable time ; yes, sir. 

Q. Up to that time did you have any idea that Judge Busteed was corrupt in the admin¬ 
istration of his office.—A. I think I have already stated that. I had about come to the con¬ 
clusion, or the preponderating opinion in my mind was, that it must be true, but that I had 
thought and said if the judge would carry himself clear from now on he might get along. 

Q. Look at the paper shown you and say whether it is in your handwriting.—A. It is. 
It is a letter written by me to my father. 

The letter was read as follows: 


“ Montgomery, Alabama, January 19, 1867. 
“My Dear Father : This will be handed to you by my friend Judge Busteed, to whom I 
am indebted for many kindnesses. I need not make him otherwise known to you more than 
he already is. You wili be very glad to see him. 

“ Your most affectionate son, 

“WAGER S WAYNE 


“Hon. N. H. Swayne, 

“ Washington , D . C.” 

Q. Have you any of the letters written to you by Judge Busteed. — A. I suppose I have. 

Q. Where are they.—A. They are among my letters. I could not tell where these special 
letters are ; some are at Nashville, some at Columbus, and those received within the last two 
or three months I have with me. 

Q. You were subpoenaed to come here as a witness.—A. No, sir; I was not. In a certain 
sense I am ; I obtained a leave of absence some time ago. I had no thought of this investi¬ 
gation at the time. I left Louisville with the design of coming to Washington, and I saw a 
telegraphic despatch in the papers that this investigation had commenced. As it was part 
of my plan to come to Washington, and from which I did not wish to deviate, I wrote to my 
father to ask Major Semple whether they could not dispense with my testimony before this com¬ 
mittee. He wrote back to me that he had seen Major Semple; either wrote that or told me after 
I came here, and that the managers of the prosecution were unwilling to dispense with my 
testimony. After I got here Major Semple told me that he had sent to Nashville for me, but 
the letter or whatever it was reached Nashville after I had left there, and I had no knowledge 
of its being sent until I reached here. 

Q. Do you know whether in the Army and Navy Journal, the last issue or the second to 
the last, it is not stated officially that you are on leave for the purpose of being a witness 
here.—A. What has been said this morning is the first intimation I have to this effect. After 
I reached Washington and found that I was to be summoned before this committee, I told 
the Secretary of War that I should like to have an order directing me to stay here until the 
examination was concluded, as I did not want the time that I was here for that purpose 
deducted from my furlough. He said I could have such an order upon the request of the 
committee. I then wrote to Major Semple to ask the permission of the sub-committee to 
have the order of the Secretary ot War, and it 1ms been issued accordingly. 

Q. The ferocity of which you spoke as having told Judge Busteed about, in relation to 
James Q. Smith, was a letter written by Smith about some conduct of your own.—A. No, 
sir; I was not sure I was referred to. The letter I refer to was a letter to Mr. Lacroix, in 
the internal revenue office at Selma, which Mr. Lacroix I did not know at that time, or very 
slightly. But he afterwards showed it to me, and it was a letter in which the person 
addressed was called “a damned black son of a bitch,” or something to that effect, and I 
spoke to him about the character of a man who could write such a letter as that. 

Q. Wasn’t the letter you referred to to Judge Busteed, a letter in which he said he would 
have spat in your face if you had said in his presence what you said behind his back —A. I 


t 


1G1 


a vi not sure ; I cannot say *, T do not know ; and yet it seems to me that some reference of 
that sort was made to me in the letter. I never saw the letter but once, and that was a long 
while ago. 

Q. Coining back to the two ships that were in your possession, and that were sold under 
the decree of the court, do you not recollect requesting Judge Busteed to stay the sale of 
those vessels in Montgomery, and stating to him that you could get $40,000 for the best of 
the two. — A. I rather think I did, though I do not remember. 

Q. And that you could get $I0.U0U lor the least of the two.—A. I dare say I did, though I 
do not remember, 

Q. Don't you recollect it as occurring when Judge Busteed was in bed, and you came up 
to see him, and sat by the side of the bed and talked about it —A. No, I do not. 

Q. Did Judge Busteed write you on the subject of the ships.—A. That I do not remem¬ 
ber. 

Q. Did he write you on the subject of the Gainesville matter.—A. He did. 

Q. Did he write you on the subject of the land in Selma.—A. He did. 

Q. Do you recollect whether that was about the 5th of January, 1867.—A. I do not. 

Q. Did you answer the letter he wrote you on these subjects.—A. That I cannot tell. 

Q. Would you recollect the substance and tenor of the letter he wrote to you if it was 

to be read to you, taken in connection with your letter of January 8.—A. That I cannot 

say. If I could see both letters 1 could tell. 

Judge Busteed read a letter dated Mobile, Alabama, January 5, 1867, to General Svvayne, 
assistant commissioner of the Freedmeu’s Bureau at Montgomery, signed Richard Basteed. 

It is as follows: 

“Mobile, Alabama, January 5, 1867. 

“My Dear General: Yours of the 26th of December, 1866, is at hand. It has been next 
to impossible until now to acknowledge its receipt. 

“ First, the application of Fierce for the appointment of William E. Clark as commissioner 
under the civil rights’ bill will be granted. Your own endorsement is the only voucher I 
need. By the way, you were to make out a list of reliable persons for appointment as com¬ 
missioners and send it to me; this you should do. The circuit court makes the appointment, 
and it meets here on the first Monday of February next. I have no power over the subject 
as a district judge. 

“ Second, as to the ships. These are vcxata quceitio. I think it was a mistake not to have 
allowed their sale eight months since; but then you thought there was a person who would 
give $40,0(10 for the best of the two; and, acting on this, the United States marshal was 
directed not to sell against the consent of the bureau, or of its counsel here. The expenses 
of keeping, watching, oiling, baling out, &.C., has been very great, and if the vessels had 
not been sold when they were their care and custody would soon have consumed their utmost 
value. I understand the marshal to say that Mr. McKinstry did not give him notice to post¬ 
pone the sale beyond the day to which it stood last adjourned. The vessels were sold in my 
absence, as you are aware, and I have no means of determining their value. To my unedu¬ 
cated marine understanding it appears they were given away; but I do not know anything 
about it, nor can 1 find out. As I said above, the mistake was not to sell them before the 
expenses consequent upon their retention accrued ; but it is of no avail to wring one’s hands 
in grief over milk that, is spilt. 

“Third, the Gainesville matter. I do not recollect the statute you refer to, under which 
the deputy United States marshal assumes to act; but I do know that ‘the old confederate 
arsenal’ cannot be put to any better use than to have it occupied as a school in which that 
portion of the American people long chained to barbarism, slavery, and ignorance may receive 
the manifold blessings of education and knowledge. I enclose an order on the subject. 

“ Fourth, the laud in Selma. I did not get your letters of the 15th and 17th of December 
until the 22d ultimo, two days after I had left Montgomery. Judge Chilton sent them to me 
here. On reference to the acts of Congress of August 6, 1861, and July 17, 1862, you will 
see I have no authority to grant the request contained in the letter of the 15th of December, 
(to convey the property in kind to the bureau ) The commissioner asks what I have no 
power to grant. The act of August makes provision for the seizure and confiscation of cer¬ 
tain described property, and also for its condemnation by judicial decree. The fifth section 
of the act of July 17, 1862, provides that ‘it shall be the duty of the Piesident to cause 
seizure of all the estate and property, money,’ &c., ‘ of the persons,’ &c , ‘and to apply and 
use the same and the proceeds thereof,' &c. This language looks to a distinction between real 
estate and personal property; the last may be directly used and applied as the law points 
out, but only the proceeds of the sale of real property could be used for the support of the 
army.’ The eighth section of this act is conclusive on the question; it treats of ‘decrees 
of sale’ of ‘real estate,’ and ‘ deeds’ that will ‘ vest in the purchasers of such property, and 
give good and valid titles thereto.’ I have never seen the order of the President, to which 
you refer in your communication of December 17, and will be obliged to you for a copy of 
it; it may have an important bearing on the question of the disposition of the proceeds ot 
sale after these shall have come into the registry of the court; the counsel retained by you can 
then properly intervene for the bureau. To you I need hardly add that if 1 were the national 

11 B 


162 


legislature I would by all legal means protect and cherish the helpless beings whose sud¬ 
den freedom appears to be little more than liberty to perish at leisure, or to be again enslaved 
under the guise of an enforced vagrancy. 

“ Faithfully yours, 

“RICHARD BUSTEED. 

“Major General Swayne, 

“Assistant Commissioner Freedmen's Bureau, Montgomery , Alabama .” 

Q. [Letter shown to witness.] Read that and say whether you got it, and whether this is 
the answer to it.—A. I think that is a reply to the letter received. 

(A. letter from General Swayne to Judge Busteed, dated Montgomery, January 8, 1867, 
was read to the witness, as follows :) 


“Montgomery, Alabama, January 8, 1867. 

“ My Dear Judge: I am greatly obliged for your letters received yesterday, to which I 
send a hasty and preliminary reply. I am a little surprised and troubled that Judge Chilton 
should never have shown you the order, and on which my letters handed you by him were 
based, as I supposed they had been. I sent them both enclosed. 

“About the ships, it is certainly not worth while to cry for spilt milk. I had bona fide 
offers, or at least I thought so, at the time the limitations were set up ; now I am quite con¬ 
tent to rely on the discretion of the court. Thanks for the Gainesville order. You will see 
that the 12th section of the act extending the duration of the bureau makes your action in the 
premises quite proper. I have been searching for commissioners, but with poor success. I 
sent to you a copy of my report; I feared it did not reach you, so I send another. I mark 
the order of the President on the eighth page. Please stir up such of the Mobile delegation 
as you see to favor the amendment ; it is just possible it may pass next time. What do you 

think is in the future? I cannot tell, and have forebodings. Mr. -, I learned, has 

gone back to New York; otherwise, we have no change here. I have a kind remembrance 
from Mrs Wood on New Year’s day. Present my kind regards to Mr. Worrall. 

“Very truly, yours, 

“WAGER SWAYNE. 

“Hon. Richard Busteed, Mobile, Alabama. 

“P. S.—Please send me just a line to let me know you received this. Apropos to this 
letter, I do not think that, as a general rule, it is well when a dog barks at you to try to get 
even with him by barking at him, since, by virtue of his dogship, he has you at a disad¬ 
vantage ; vet I think this letter made a good impression. 

“ W. S.” 


By Judge Busteed: 

Q. Was the Gainesville matter referred to in that letter the same as you have referred to in 
your direct testimony.—A I have not referred in my direct testimony to any Gainesville 
matter; it was the Greenville matter I referred to. 

Q. Will you have the kindness to look at the paper now shown you and say whether it is 
in your hannwriting.—A. Yes, sir; it is. 

(Letter from General Swayne to Judge Busteed, dated headquarters sub-district of Ala¬ 
bama, February 9, 1867, read to witness, as follows:) 


“Headquarters Sub-district of Alabama, February 9, 1867. 


“My Dear Judge: In view' of the delays just now affecting all the , as well 

as of the law’s delays, let me stir up your pure mind to remember that the sale at Selma will 
transpire before the order to adjourn can reach there, unless it starts upon its mission speedily. 
“ Very truly, yours, 


“Hon. Richard Busteed, Mobile Alabama .” 


“WAGER SWAYNE. 


Q. Do you think you would recognize my answer to that letter of yours if I should read 
it to you.—A. I think I would. 

(Letter from Judge Busteed to General Sw'ayne, dated Mobile, Alabama, February 14, 
1867, read to witness. It is as follows:) 

“Mobile, Alabama, February 14, 1867. 

“ My Dear General: Yours of the 9th came to hand two or three days since. I have 
been extremely busy since my return here, holding daily sessions of the circuit and district 
courts. What w ith charging grand and petit jurors, hearing arguments, deciding motions, 
&c , my mind is kept on a continual stretch, and my body so tired that it aches. Your 
request to have the sale of the real estate at Selma postponed has been the burden of many 
anxious thoughts. I wi>h greatly, whenever I may, to forward your personal wishes in 
respect to the Freedmen’s Bureau, as w'ell as to render aid in making it effective for the great 
purposes for which it w'as instituted. 1 have consulted with Mr. Worrell on the question of 
my power mtro motu to order a postponement of the sale, and w r e agree that I have not the 



.163 


rig'ht to do so. If the district attorney for the plaintiffs, or the counsel opposed for the 
claimants, should make a motion to adjourn the sale, and in the morning papers show a good 
case, my right to grant the motion would be undeniable ; but I am clear I cannot of my mere 
will, or upon the suggestion of a stranger to the record, interfere to delay the execution of a 
decree, or alter its effect. This would be to make the pronounced judgments of the court 
subject to the caprice of a judge. 

“ I am, my dear general, very truly yours, 

“RICHARD BUSTEED. 

“ Major General Swayne, fyc., $fc.” 

Q. Having that letter before you, with its date, and having heard it read, have you any 
doubt that letter was received by you.—A. I think I received that letter. Yes, I did receive 
that letter. 

Q. Look at that letter, and say if it is in your handwriting.—A. Yes, it is. 

(The letter read as follows:) 

“ Headquarters District of Alabama, 

“ Montgomery , Alabama , May'S, 1867. 

“My Dear Judge : I will take you out in my carriage at any hour you think best. 

“ Yours, very truly, 

“WAGER SWAYNE.” 

Q. Now, sir, tell this committee, if you please, who reported to you such conduct of mine 
on the bench, on your return from Atlanta in June, 1867, as induced you to decline any fur¬ 
ther intercourse with me. Who told you—A. The two persons upon whose judgments I 
relied, or whose statements were convincing to my mind, were Edward Beecher, formerly a 
judge in Illinois, at that time a major and paymaster of volunteers, and disbursing officer at 
my headquarters. Judge Beecher was a man some 50 years of age. He is now the assistant 
commissioner of the bureau. 

Q. Who else. — A. The other person was William H. Smith, now governor of Alabama, at 
that time superintendent of registration in my office. 

Q. Did anybody else make statements to you on that subject.—A. I think Major Semple 
made some srateinents to me to the same effect, and other lawyers of Montgomery. 

Q. Don’t you know that Semple did make them to you.—A. Not positively. I think he 
did, however. 

Q. Have you any reasonable doubt on that subject that would induce you to disbelieve 
that he did.—A. No, sir; I should rather believe that he did. But it was upon the state¬ 
ments of Major Beecher and Governor Smith that I relied. 

Q. Chief Justice Chase had written you a letter about me, had he not.—A. He had. It 
was that letter which induced me to reconsider the conclusion I had adopted touching Judge 
Busteed. 

Q You were not asked that, and needn’t volunteer it. Have you got that letter.—A. I 
have it. 

Q. Here with you.—A. No, sir. 

Q. Or in Washington.—A. No, sir, it is not. 

Q. What did William H. Smith tell you that he observed in my conduct on the three days 
between the time you took me out driving and the time of your return to Montgomery, that 
made you arrive at this conclusion about me.—A. He told me that on a certain occasion wheu 
he was in court quietly observing the proceedings, the conduct of Judge Busteed in a case 
against a certain woman as administratrix, in which James Q. Smith was counsel for the 
claimant, was such in general, and particularly in a denial of the right of appeal, by which 
his proceedings could be brought up for revision, was such as amounted, in fact, to an abso¬ 
lute denial of justice; that it was in the face of law, and could only have proceeded from 
corruption. 

Q. Is that all that William H. Smith said to yo,u on that subject.—A. That is the substance 
of it. 

Q. What did this Colonel Beecher tell you.—A. He told me that the conclusion arrived at 
in his own mind, from also being in court as a spectator of the proceedings of the court, was 
the same as that arrived at by Judge Smith. 

Q. What else did he tell you, if anything.—A. Nothing—that is to say, is it meant by 
your question- 

Q. On which you based your conclusion.—A. That is all that this gentleman said which 
had any influence on my mind. 

Q. What did Heury C. Semple tell you.—A. Iam not sure that Mr. Semple said any¬ 
thing. He may have given me an account likewise of the proceedings of the court. But 
before or after that measure either Mr. Semple, or some one other than the two persons I 
have spoken of, I think, told me that the bar meeting had been in view of that and one or 
two other cases to take steps for the impeachment of Judge Busteed. 

Q. And that was ail the information conveyed to you upon which you based your action.— 
A. That was all. 

Q. Look at that letter and say if it is in your handwriting. 

Letter from General Swayne to Judge Busteed, dated Montgomery, June 5, 1867, read to 
witness. It is as follows : 



164 


‘•Montgomery, June 5, 1867. 

“ Dear Sir : It seems to be due to you that I should explain why I have as yet taken no 

part in the-at the State-house, in which your name is used. When 1 returned from 

Atlanta, on Saturday morning last, I learned to my surprise and chagrin, but from sources 
which I could not disbelieve, that your conduct on the bench during the two days previous, 
and afterwards on that day, had been such as necessarily to cut off from you any support on 
my part. How much I regret this, no one knows better than yourself. 

“ Your obedient servant, 

“ WAGER SWAYNE. 

“ Hon. Richard Busteed. ” 


Did you send that note to General J. W. Burke to give to me.—A. I did. 

Q. Did he hand you back an answer.—A. He did. 

Q. Will you recollect it if I read it to you.—A. Yes. 

Letter from Judge Busteed to General Swayne, dated Montgomery, June 5, 1867, read to 
witness, as follows: 


“ Montgomery, Alabama, June 5, 1867. 


“ Dear Sir : I am in receipt of your note of this a. m. I needed no explanation of your 
silence when I was assailed in a public convention of professed Union men, nor do I think 
any was due me. It is ‘due’ to me, however, and I require at your hands, that you ‘ should 
explain’ what you mean by saying ‘when I (you) returned from Atlanta, on Saturday morn¬ 
ing last, I learned to my surprise and chagrin, but from sources which 1 could not disbelieve, 
that your (my) conduct on the bench,’ &c. Pardon me for saying tbat.you must specify 
the conduct and name the witnesses. I will not allow any person occupying your position, 
if I can help it, and especially under cover of an expression of regret, to accuse me of fur¬ 
nishing him just grounds for joining a horde of unreconstructed and defiant rebels in an 
attempt to destroy me or my usefulness. I hope to hear from you with the utmost explicit¬ 
ness early to-day, as I leave town to-morrow. 

“ Your obedient servant, 

“RICHARD BUSTEED. 


“General Wager Swayne.” 


Q. Did you get that letter.—A. I did. 

Q. Did you ever make any reply to it either orally or in writing.—A. I did not. 

Q. Do you know of Judge Busteed having written of your conduct complainingly to the 
Chief Justice.—A. No, sir. 

Q. Has the Chief Justice ever shown you any of my letters to him.—A. Never. 

Q. Do you know how the nomination of General Healy was procured for marshal of Ala¬ 
bama.—A. I have no special knowledge. My knowledge is embraced in this, that I think 
Major Semple got up the petition, probably, for the appointment of General Healy. I probably 
wrote to the Attorney General. 1 did everything I could to get him appointed. 

Q. Do you know whether or not General Healy gave his notes for $> 1,600 to Mr. Saffold 
growing out of that appointment and for it.—A. I do not. I think that after General Healy 
was confirmed M. J. Saffold wrote a letter—w r hether to me or to General Healy I do not 
know, but I certainly saw it—in which he stated that he had done a great deal for General 
Healy’s confirmation; that he was in pecuniary distress, and he thought he ought to have 
some money. I remember speaking with General Healy about it. If the letter was to me I 
simply handed it to him, and advised him to have nothing to do with it. Certainly that let¬ 
ter was the first I ever knew of Saffold’s having anything to do with Healy’s confirmation, 
or of any money being used in the matter. 1 do not know that any money was ever used. 
I do not think I wrote to Saffold urging him to help Healy’s confirmation. If I did, it was 
without any idea of any money being used in the premises. 

Q. Do you know whether M. J. Saffold received any money for the appointment of Martin, 
who shot me.—A. No, sir; I know nothing about that. 

Q. Had you anything to do with the nomination of Elmore as collector of Mobile.—A. No; 
I knew nothing about his nomination. 

Q. Had you anything to do with his confirmation.—A. He asked me to help him get con 
firmed, to which I never made reply, and never did. 

Q. General Healy is a gentleman entitled, so far as you know, to the utmost respect.— 
A. Yes, sir; so far as I know. 

Q. And when you stated your intention to get Hardy removed, to Judge ^usteed, and 
told him you had as good a man, Judge Busteed didn’t say anything against General Healy, 
did he. — A. I think not. 

Q. Isn’t it a fact that Judge Busteed and General Healy were entire strangers at that time; 
do you know anything about that. — A. I do not. 

Q. Now I want you to recur to the conversation you had with the judge when you wanted 
him to get rid of these fellows who were such a pest in your opinion. Don’t you know that 
Judge Busteed has told you since that conversation that if it were not for his entreaties with 
Hardy, Haidy would have slapped your face.—A. No, I do not know anything about that. 

Q. You never heard anything about it.—A. Not that I recollect. 



165 


Q. When was Horton’s imprisonment that you talked of; what date.—A. That I cannot 
tell. That is of record. 

Q. Was it not in December, 1867.—A. For that you must refer to the record. 

Q- Why do you suppose that charge of Judge Busteed’s, in the case of Horton, is before 
this committee.—A. Because I regard a prosecution for impeachment would have embraced it. 

Q. You would have done it.—A. Certainly. 

Q. How long was Horton imprisoned.—A. I do not know; a day or so, I believe. 

Q. And you were greatly angered at that.—A. I was, thoroughly. 

Q Have not got over it yet.—A. I don’t know about that. 

Q. Have you.—A. I don’t know about that. 

Q. Can you state now whether you have got over that anger yet.—A. I am not in the 
habit of swearing as to the condition of my mind. 

Q. I insist upon answer. 

(Question overruled by the committee.) 

Q. Did you see the papers upon which Smith was to be removed, before they were sent 
to Washington.—A I probably saw some of them. 

Q. Did you ever state to Judge Busteed what the papers contained.—A. Not that I know of. 

Q. Never, either orally or in writing.—A. Not that I know of. 

Q. Isn’t it a fact that you industriously concealed from Judge Busteed your own action, 
both in relation to Smith and Hardy, so far as their removal is concerned.—A. I certainly 
did n<>t. 

Q. But you as certainly did not tell him about it.—A. I do not remember that I did. 

Q. Why didn’t you communicate in writing to Judge Busteed such charges upon which 
you sought the removal of those two officers of this county.—A. My impressiou is that, I 
think, I once told Judge Busteed that the governing principle with me in the matter was 
that it was not best to mix him up in a contest for the removal of the officers of his court. 

Q. Then your tender considerations for the judge induced your silence, did it? Was it 
out of tender consideiation to the judge then that you kept him so in the dark as to the 
charges upon which the officers of his court, the marshal and district attorney, were to be 
removed.—A. I think I made no effort to keep him in the dark, though I did not appeal to 
him for assistance, because I did not think it was best for him, or any man in his position, 
to attempt to mix up in the removal of the officers of his court. 

Q. Haven’t you just said that you deemed it necessary to get rid of Smith and Hardy, as 
you deemed them a curse to the people of that State, and that if you could arouse Judge 
Busteed to the same opinion, his course in relation to it would be different.—A. I remem¬ 
ber what I testified, and I presume what I did testify was, that I said to the judge I was 
anxious he should clean out from his court these dishonest men, of whom Smith was one. 
But that referred to a time when they were removed, and when Smith was still exercising 
these undue influences there in his court after his removal, when Smith was in his court as a 
practicing attorney. 

Q. How did you propose that Judge Busteed should get rid of Smith out of his court as a 
practicing attorney.—A. What was meant in that conversation; what I meant by what I 
said, and what I take it was understood was, that the relations between Mr. Smith and 
Judge Busteed, which were the subject of such universal comment, should then cease. 

Q Is that all you meant.—A. That is what I meant. 

Q. Was that all you meant.—A. Yes, sir. I took it for granted that the gentlemen would 
leave his court if they were treated as they deserved. 

Q. Do you refer to anybody but Smith, by “gentlemen.”—A. I do not know that anybody 
but Smith was mentioned, but Wyatt was bringing as much disgrace upon the court and the 
judge as anybody. He was a United States commissioner, and I guess his name was men¬ 
tioned in this conversation. I do not know that he practiced in the court, but he held his 
appointment from the judge. 

By Mr. Eldridge: 

Q. Was holding it then.—A. Yes, sir; and I think Hardy was still about the marshal’s 
office, under the plea of closing up the old business, in which he had served original pro¬ 
cesses ; and there were other things perhaps. I had other things in my mind at the time. 

Q. How did you think Judge Busteed could prevent Hardy from closing up his marshal’s 
business —A. I do not think 1 thought at all on that subject. 

Q. How did you think Judge Busteed could prevent Mr. Wyatt’s connection with the 
court.—A. By terminating his appointment. 

Q. Did you ever suggest to him to terminate the appointment.—A. I think I did. 

Q. When —A. Probably during that conversation. 

Q. Do you recollect anything about it.—A. I am not positive about it. 

By Judge Busteed: 

Q. Don’t you know that Judge Busteed of his own motion cited Wyatt to appear before 
him, on account of his conduct, or rather his language, to a black man, and referred the 
matter to a lawyer to determine.—A. I do not know that. 


1G6 


r By Mr. Eldridge : 

Q. What had this Wyatt been doing 1 that led you to think of him as you did, and to talk 
to the judge about him.—A. On the statements made to me that while Wyatt’s authority, 
as I understood it, was limited to binding over persons to court, and to collecting the costs 
in the cases where he did bind them over, or rather to their ultimate collection by the mar¬ 
shal, that still he was in the habit of summoning Tom, Dick and Harry before him upon all 
sorts of charges and peremptorily collecting costs, illegal in fact as to the date of their col- . 
lection, and unlawful as to their amount. 

Q. Did you communicate these things to Judge Busteed.—A. I rather think I spoke of the 
behavior of Wyatt 

Q. Did you specify in what conduct he was to blame.—A. I do not think I did. I think 
that was a matter of common report and understanding. 

Q. Did Judge Busteed make any remark to you that gave you toknow that he understood 
about the conduct of Wyatt.—A. I certainly had no impression that he failed to understand 
it. If I had, I should have been more explicit. 

Q. You had no personal knowledge of the matter yourself.—A. No, sir. 

Q. No knowledge of Ins having taken illegal fees, or collecting them at an illegal point of 
time.—A. Only from what was said to me. 

By Judge Busteed : 

Q. By whom.—A. By various people. 

Q. Who from.—A. From the people that I boarded with. 

Q. Name them.—A. A family by the name of Bibb. 

Q. The whole family.—A. I cannot say. 

Q. Name any other person except Bibb.—A. I heard it from Major Semple. 

Q. What did Semple say.—A. I cannot tell you what he said, though he told me of one 
of his clients, and I heard it from officers. 

Q. What officers —A. That I cannot tell. 

Q. Name any other person except the Bibb family and Semple that told you.—A. I think 
I could name with positiveness Mr. John C. Keffer, who was at that time my chief clerk. 

Q. Anybody else.—A. I could not say positively. I think my adjutant general, Major 
Green, spoke to me about it. 

Q. Have you named all you can now name —A. I think I have. 

Q. Which of the Bibbs was this.—A. That I cannot tell you, probably the old gentleman. 

Q. Is Wyatt an Alabamian.—A. He has lived there for many years. 

Q. Lived there long before Judge Busteed came to the State.—A. Yes; 30 or 40 years 
before, I presume. 

Q. Do you know whether this same Wyatt has been recommended by the bar of Mont¬ 
gomery for appointment as assistant register in bankruptcy.—A. I do not know anything 
of that kind. 

Q. Do you know yourself anything to the personal discredit of Wyatt.—A. I do not. 

Q. This tongue of rumor was what you made up your mind from.—A. Yes, sir; these 
recitals made to me of specific acts 

Q. And you believed the evil you were told. — A. I did, after it was corroborated. 

Q. Did you attend any of the meetings of the bar in Montgomery.—A. I did not. 

Q. Did you know of their being held at the time they were held in secrecy.—A. I do not 
think I did. 

Q. When did you first learn of it.—A. About the time I wrote that last letter to the judge, 

I learned from somebody, I do not know who, that the bar meeting had been or was being 
held; I think I heard it from several sources, from Governor Smith among the rest. 

Q. The day you wrote that letter didn’t you take Semple out riding.—A. Not that I know 
of; if I did it was after I wrote the letter; my impression is that I never consulted Major 
Semple about that letter until after I had written it; then I showed to him the original draught 
of it; I do not thiuk, upon recollection, that I had any conversation with him about the 
immediate occasion of its being written until after it was written. 

Q. Will you say that on Monday, June 3, you did not take Semple out riding.—A. I can¬ 
not say that. 

Q. Have you any recollection of going riding with Semple on June 3, in Montgomery.— 

A. Not .the slightest. 

Q. You have no recollection whether you did or did not.—A. No, sir; I could not state 
on my oath ; 1 took him out riding with me once or twice. 

Q. You recollect, however, that Semple, together with Goldthwaite, Rice, and Elmore, 
sued Judge Busteed, don’t you.—A. Yes ; I recollect being told so. 

Q. Did Judge Busteed communicate to you that subject officially.—A. Yes, sir. 

Q. What official action did you take, if any, in the premises.—A. I referred it immediately 
to my superior officer for instructions, by endorsement. 

Q. Did you ever get any instructions.—A. I never did ; I sent it by the next mail. 

Q. Did you ever ask for any.—A. No, sir; not after I was advised by General Pope that 
he had the mutter under investigation. 

Q. Didn’t you publicly express your sympathy in that suit.—A. Not that I know of. 

Q. Did you privately.—A. Not that i know of. 


167 


Q. To any person. A. Not tliat I know of; if Judge Busteed spoke of it I might have 
expressed to him my regret. 

Q. I am not asking if Judge‘Busteed did so and so.—A. I do not know as I expressed 
any sympathy in the premises to any one. 

Q. Will you say that you did not.—A. No. 

By Mr. Eldridge : 

* Q. Were those suits commenced before this letter was written.—A. Yes, sir ; just before. 

Q. What is the date of those suits.—A. [Judge Busteed.] June 3. 

By Judge Busteed: 

Q. You know John C. Keffer.—A. O, yes. 

Q. You urgently begged me to appoint him register in bankruptcy for Montgomery, if he 
should be nominated to me by the Chief Justice, didn’t you.—A. I dare say I did. 

Q. Didn t you —A. I do not remember positively; I certainly was very anxious he 
should be. 

Q. Hadn’t you before that urgent recommendation to me, written to the Chief Justice on 
the subject of nominating him.—A. I think I had. 

Q. Have you any doubt of it.—A. Not a bit; I dare say I did. 

Q. Have you a copy of your letter.—A. No. 

Q. What was John C. Keffer at the time you urged the Chief Justice to nominate him to 
me, and when you urged me if the Chief Justice should nominate him that I should appoint 
him.—A. My chief clerk. 

Q. Chief clerk of your bureau.—A. Yes, sir. 

Q. And a very prominent member of the Union League there.—A. Yes. 

Q. And under your instructions organizing the black men into Union Leagues.—A. No, 
sir; not under instructions. 

Q. Under your advice —A. Not under my advice. 

Q. With your knowledge then.—A. With my knowledge, yes. 

Q. And how much of the time, in your judgment, was spent by Mr. Keffer in this organ¬ 
ization with your knowledge.—A. I guess a good part of his leisure time ; he attended to 
liis duties faithfully in my office. 

Q. Wasn’t the most of his time, while he was in your office, occupied with that subject.— 
A. I think not. 

Q Was there a large part of his time occupied.—A. I think he did pretty much every dav 
a good day’s work; 1 often made him work nights for me, aud sometimes Sundays; I 
would like to say in this connection that I never refrained, that I know of, from giving Mr. 
Keffer every part of his legitimate duties to do that he might divert his attention to any other 
objects ; on a single occasion I sent him to Mobile to organize a Union League of colored 
men, because that seemed to be the only way to suppress a riot; the circumstances were 
these: Certain white men in Mobile, of whom I had a very bad opinion, were giving the 
negroes excee lingly violent counsel—haranguing them in such a way as was likely to induce 
violence ; the agent of the bureau, the officers of the troops, and people down there, were all 
writing to me that they were afraid of a riot, and that opposite sides were arming, and they 
apprehended trouble; I had not troops enough to stop the mischief, and could not rely upon 
them, for the feeling of the troops was against the negroes ; I saw but one way to stop it; I 
sent over to Selma and got the late principal of colored schools in Mobile, and took Mr. 
Keffer, my chief clerk, and sent them to Mobile to organize the black men down there into 
Union Leagues, and put them under the charge of white men who would give them reason¬ 
able counsel; they went down there, and did organize two large Union Leagues, and put one 
under the charge of an old merchant of the city—Mr. Horton, now probate judge—and the 
other under the charge of some other person whose name I do not remember; but by these 
means they succeeded in putting these colored men under the charge of reliable persons, and 
eliminated these men of whose mischievous counsels I was afraid ; dining that time that Mr. 
Keffer was so organizing the Union League, I could not say strictly with reference to that 
matter, that I never used him for that purpose. 

Q. Who were these white men in Mobile that were inciting these negroes to riot.—A. 
Harrington and Turner. 

Q. Isn’t Harrington now the city attorney of Mobile.—A. I do not know. 

Q. You had a little personal misunderstanding with Harrington and Turner on political 
subjects.—A. Not that I know of; no. sir. 

Q. You knew they were utterly opposed to your senatorial pretensions, didn’t you.—A. 
Not at the time. 

Q. Didn’t you know, at the time you wrote to the Chief Justice to get him to nominate 
Keffer, and the time you requested me that if the Chief Justice should nominate him that I 
would appoint him, the circumstances attending John C. Keffer’s attending my court as an 
attorney - A. I probably did know the circumstances ; I do not know them now. I have 
some recollection that there was a difficulty about Mr. Keffer’s not having studied law, and 
my impression is that it was eventually overcome and he was admitted to the bar. I think 
he read law for awhile, or ostensibly did so. 

Q. Where.—A. Iu Montgomery. 

Q. In your office.—A. I think so. 


168 


Q. Didn’t this conversation about Keffer occur on the 3d of June, 1867—jour request 
that 1 would appoint him.—A. 1 think it did ; 1 do not know. I rather think it was the 
day we went out riding 1 . 

Q. And your.letter was dated June 5.—A. Yes. 

Q. What did Judge Busteed say to you in answer to your urgent solicitations in the 
Keffer business.—A. I think he said he thought Mr. Keffer was intemperate. 

Q. Did he make you a'promise to appoint him.—A. I do not think he did. 

Q. Did he refuse your request. — A. I do not think he did. 

Q. Do you recollect what he said, if he said anything.—A. The only thing I recollect 
was. that, he objected on the ground that Keffer was intemperate. 

Q. What did you say on that ground.—A. That I had had him 18 months, and had never 
seen a trace of that kind. 

Q. When Keffer was appointed by me you were told of it.—A. I knew it. 

Q. Who told you that.—A. I do not know ; I knew it. 

Q. Did you know it by intuition.—A. No. 

Q. Who told you.—A. I do not know whether I was told of it or read it. I knew it. 

Q If you read it, where did you read it.—A. That I do not know. I simply know that 
Keffer was appointed register in bankruptcy. 

Q. And Keffer’s appointment being certain had nothing to do with your writing your 
letter of June 5.—A. Nothing at all. 

Q. You have spoken, in your examination, of a difficulty I had with the colored people 
of Alabama; state the paitieulars of that difficulty.—A. I do not think I could do it. 
There was some trouble in Mobile, about which I cannot be definite; but a quarrel broke 
out at Mobile between the colored people and the judge, and that extended to a pretty bitter 
feeling against him amongst this people throughout the State, as far as they had knowledge. 
I do not know what that was. Whether it grew out of some speech that the judge made 
at the rebel meeting there, or whether it grew out of something that took place in the court, 
I cannot definitely say. 

By Mr. Eldkidge: 

Q. Do you remember any speech that the judge made at any such meeting.—A. The 
judge, it seems to me, did make a speech at the rebel meeting. I just thought of it. 

By Judge Busteed: 

Q. That is all you know" about the row yourself.—A. Yes, I think that is all. 

Q. You and Ketfer had the black men pretty well in hand with the Union Leagues.—A. 
I had nothing to do with the Union League. 

Q. Did Keffer.—A. I presume he did. 

Q. Don’t you know he did.—A. I do not. 

Q Do you believe he did. — A. I know he was secretary of a Union League. I believe 
he had great influence with them. 

Q. You called this a rebel meeting at which the judge made a speech.—A. My impression 
is that it was a rebel meeting. 

Q. Don’t you recollect Judge Busteed's presiding at that meeting —A. No, I do not. 

Judge Busteed. I will read the speech I made there. It is as follows: 

SPEECH OF JUDGE BUSTEED. 

“Gratefully acknowledging the honor conferred, I accept the place to which your par¬ 
tiality assigns me. I have carefully considered the call under which we are convened 
tonight, and to all of the purposes stated in it I give my hearty assent, and to them here 
pledge my unqualified support. I rejoice to stand with you on this platform, and beneath 
this Hag. And now, in a joint effort to secure future peace and prosperity, 4 let the dead 
past bury its dead;’ let us revive and renew only such recollections as will stimulate and 
strengthen liberty and fraternity throughout all the land. Be our battle cry, ‘one country, 
one constitution, one destiny.’ The crisis we are called upon to meet demands our extremest 
thoughtfulness and wisdom. All that we do to be well done must have reference to the best 
interests of the whole people, and the narrowness of mere politics must give way to the 
breadth ot comprehensive statesmanship. We have met ‘for the purpose of conferring and 
consulting together,’ and the first leading object of the meeting is declared in the call for it 
to be to ‘establish and promote harmony and accord between the two races, who are now 
brought face to face in new political relations.’ What manner of man is he who shall refuse 
to co-operate in this work ? How shall his wickedness be measured who, by speech or act, 
seeks to create ill-will in the minds of either race against the other? Surely, no one but an 
outlaw, whose hand is against every man’s, and whose moral nature is festering in its own 
infamy, will be found opposing or obstructing the firm establishment of peace and amity 
between the two races that inhabit the southern portion of our common country". If such an 
one exists among us let him meet the doom he courts. Let every man’s hand be against him. 

“ The second ot the ‘ leading objects ’ for which this meeting is convened is to impress the 
citizens of Alabama with the necessity and high political duty that rests upon them, of taking 
an earnest and active part in the reorganization of the State government. With this, as with 


the object first stated in the call, I very heartily sympathize. It is the clear and indispensable 
duty of every citizen of the commonwealth to take a personal share in the labor of its politi¬ 
cal reconstruction. If this be left to the vicious and the ignorant, we will have no right 
hereafter to complain that we are hopelessly bound to the plans, and subject to the rule of 
political gamesters. No more sacred duty can be devolved upon a people than of forming 
or of reforming their government, and in this great work we must invoke the aid of the 
learning, the patriotism, and the piety of the community, or they will labor in vain that build 
the house. These are the only foundations upon which a solid and enduring superstructure 
can rest 

“ The third of the ‘ leading objects ’ of this meeting, as it is stated in this call, is ‘ to ex¬ 
press to General John Pope, commanding the third military district, the gratified sense of 
this people at the justice and moderation of the spirit which he brings to the discharge of his 
great and delicate trusts.’ This statement needs no commentary by me, and cannot be im¬ 
proved by any. It gives me great pleasure to join in this expression of the public thanks to 
one who combines in himself the characteristics of a gentleman and a soldier. You will pre¬ 
sently be addressed by speakers who will discourse to you on the general subject in respect 
of which we have met. It may be that some of the views they present will not meet unan¬ 
imous concurrence. Even in such a case I am sure I need not bespeak the attention and 
courtesy of the audience. Truth has nothing to fear from discussion, and our presence 
here only binds us to the objects stated in the call, and to the resolutions which may be 
adopted by us. By all means, then, let our conference be lull and manly and free, meeting 
the issues that confront as, let us discuss them in a spirit and in language becoming: their 
gravity. The e)es of our countrymen are directed towards us. Let us acquit ourselves as 
becomes the occasion.” 

Q. Do you recollect whether that was published as the address of Judge Busteed on that 
occasion.—A. I do not remember; but believe it was. And 1 still think Judge Busteed’s 
presence at this meeting was the occasion of a great deal of feeling towards him on the part 
of the colored people of Mobile. 

By Mr. ChuhchiLT. : 

Q. Was there anything else that occurred at this meeting besides the speech.—A. I think 
the parties in whose charge the meeting was were those thoroughly distrusted by the colored 
people of Mobile. What else took place I do not know. 

By Judge Busteed: 

Q. Don’t you know that two black men made addresses.—A. I do not. I know Bernard 
was bitterly denounced for his presence at the meeting by the colored people of Mobile. My 
impression is that there was none; but I do not know about that. 

Q. Now, sir, following out this matter of the row, which you say I had with the colored 
people of the State, didn’t you go into the convention held in Montgomery in June, 1807, as a 
member of it.—A. Yes. 

Q. That was a political organization.—A. Yes. 

Q. Didn’t you go in your uniform.—A. I do not know, but I think not. 

Q. In your undress uniform, I mean.—A. No, I think not. 

By Mr. Semple : 

Q. You have been asked whether the contest between Mr. Smith and yourself, in relation 
to this property, was not whether Mr. Smith should sell the property or it should be sold 
under a decree of the court. Now, for what purpose did you propose to sell it; and in your 
conversation with the judge on the subject of the proceedings against this property, did he 
or did he not allege that the informer had such au interest in it that he could not stop the 
proceedings; and that after the sale of the property under the decree of the court, and the 
payment to the informer of his share and the shares to be assigned to the officers of the 
court, that the balance would go to the bureau.—A. I stated this, that what was conveyed 
and declared to me was that the informers had a vested right to one-half, from which they 
could not be divested by legislation ; but I did not say that so much of that as related to 
the vested right came direct to me from the judge; I was careful on that point. What did 
come to me directly from the judge was that only the surplus in the case of judicial proceed¬ 
ings could go into the bureau, and that could not be in kind as contemplated by the act of 
Congress, but must be in money. The other remark may not have come direct from the 
judge, as my recollection is not clear on that subject. 

Q. You were asked whether you did not state to the judge that this was a contest between 
a pack of rebels and a thief, in relation to Hardy. Do you think it probable that you used 
the term “pack of rebels ”—A. My recollection of that would be that the judge spoke of 
those who were opposed to Hardy as “a pack of rebels,” and that, arguing that question, I 
told him that it was between them and a thief. 

Q. In describing the conversation between yourself and Mr. Semple, in relation to the 
funds from which you proposed to pay him, will you endeavor to remember whether you 
stated that the fund should come from Washington, or whether you defined and particularly 
stated the fund from which you proposed to pay him.—A. I think I stated that the Attorney 
General would supply a fund, if the proofs were filed in his office, for the employment of 
counsel. 


170 


Q. Will you endeavor to recollect the fact as to the time of the removal of Hardy. You 
were asked whether Hardy had not been removed on the l'Jfch of January, 18(57. I will en¬ 
deavor to refresh your recollection: Do you remember the time when I returned from Wash¬ 
ington.—A. I have no further recollection than just the vague impression that I tried to 
state that those men were removed, and that I did what I could to bring it about. 

Q. Do you know anything of Judge Busteed having left the State of Alabama and coming 
to Washington for the purpose of endeavoring to defeat the removal of Hardy, when you 
had notice of the sending in of the nomination of General Healy.—A. I do. 

Q. Do you not know that the matter was pending here for some time after the nomination 
by Healy was made. — A. I do; I know I had hard work to get him confirmed, but did it. 

Q. A note was read in which you stated your willingness to take the’judge out in your 
carriage, dated May 3, 1867. Was that note in answer to a request from the judge.—A. I 
do not know; we had been talking about our going out riding, and my helping him to make 
up his quarrel with the colored people, and 1 think I might have agreed to take him to that 
particular place if I could. Then I wrote to him that I could. 

Q. The note of June 5, 1867, in which you denounced the judge; had you at that time 
had any conversation with me, upon the subject of his conduct, thatyou can now remember.— 
A. 1 have stated that, to the best of my recollection, the first conversation that I had with 
you upon the subject was when I showed you the draught of the letter which I sent to the 
judge, and which has been read—a letter in which I had no intention-of denouncing, but 
which was intended as a private explanation to him of my own course, to avoid the appear¬ 
ance of insincerity. 

Q. You have spoken of Mr. Semple’s having said something to you about the conduct of 
Mr. Wyatt, and that you formed your opinion in part from what he said to you; and you 
were then asked if you remembered the principal facts that Mr. Semple stated to you. If 
they were stated to you now do you think von would recollect them. — A. I might. 

Q. Do you remember whether Mr. Semple stated to you that he had appeared before the 
judge on one occasion when a man named Scott was brought before him on a charge, and 
that he bound Scott over to appear at the next term of the district court to answer such in¬ 
dictments as were brought against him; and upon Scott’s furnishing the bail required, that 
he ordered the marshal to hold him in custody until he paid $30 in costs. 

(Objected to by Judge Busteed. Objection sustained.) 

Q. You were asked about the suit of Mr. Semple and others against the judge, and about 
the application of the judge to you in respect to it. What was the nature of that application ; 
was it that you should take charge of it and put a stop to it—this communication made by 
the judge to you. and which you forwarded to General Pope. What was that for.—A. It 
was a document that I should stop the proceedings by military authority. 

Q. Did you not inquire after that in the office of the clerk, for the records of the proceed¬ 
ings in the matter out of which Mr. Semple’s suit occurred.—A. General Pope, when he 
received that communication sent to me for those records, and steps were taken to send 
them to him, with what precise result I do not know. 

Q. Do you remember whether any paper in relation to it could be found in the office.— A. 
No, I do not. 

Q, Do you know who were the other parties most prominent at that meeting in Mobile, 
whether they were people in favor of the reconstruction measures, or those opposed to them.— 
A. I did not know anything about it until I saw that paper just now. But I know that 
Henry St. Paul, whom I understood to be the master spirit of that meeting, was, and I guess 
has been, and now is, probably the most vindictive and merciless opponent that the colored 
people had in the State. At the time when I first went to Mobile, St. Paul’s paper was 
daily urging the white people of Mobile to burn the dwellings of the colored people in the 
city, and it was carried on to that extent that the property-holders put in the columns of St. 
Paul’s paper a protest against it. The other parties whose names I saw appended to that 
call were Captain Grant, a member of the legislature, who had voted for the constitutional 
amendment, but refused to be a candidate, as I was anxious to make him. 

(Objection made to these details by the committee.) 

Q. If you wish to make any statement in relation to your testimony elicited in your cross- 
examination by way of explaining it, you can now do so.- A. I have only one statement I 
wish to make, and that was simply it might appear strange that I did not remember to whom 
I sold that vessel at Mobile. When the vessel came into my hands, and during that time, 
I was excessively busy, crowded with work, and perhaps not very well. I sent my quar¬ 
termaster, who was a bonded officer of the army, and my paymaster, also a bonded officer, 
to make the sale. I did not pay any attention to it myself. 

By Mr. Ciiurciiill : 

Q. Is there anything within your knowledge affecting the matter under investigation, 
which has not been referred to, but which in your judgment ought to be stated to the com¬ 
mittee.—A. Nothing. 

By Judge Bustefd: 

Q. What attorney general did you refer to as likely to supply a fund out of which to con¬ 
duct the impeachment of a United States judge.—A Mr. Stanberry. 

Q. Had you talked with Mr. Stanberry upon the subject.—A. Not in the least. 


171 


Q. Had you with Speed.—A. No, sir. 

Q. Have you talked with any attorney general on the subject.—A. No, sir: further than 
I may at some time have stated to Mr. Stanberry that I thought Judge Busteed ought to be 
impeached. 

Q. When did you say that.—A. I do not know; I have several times talked with Mr. 
Stanberry about the condition of things in Alabama, and think very likely I said that. 

Q. Would you recollect the communication made to you by Judge Busteed on the subject 
of these suits. You say it was a demand- on his part to stop them. Would you recollect 
the demand it it was read to you.—A. No, I do not think I would. 

Q. Was it a demand.—A. It was a communication, the purportof which was-in which 

the word “required” was used. 

Q. Do you recollect that the communication occupied some six pages of letter paper, and 
that it wound up in language like this, “I also refer you to the annexed copy of an original 
opinion of John Gill Shorter, esq., an experienced lawyer and a respectable citizen of Alabama, 
and upon the above state of facts, and upon the said opinion, in which I concur, I respectfully 
require you to take steps to have the said cases, so far as they relate to the district judge, 
removed tor trial to a national forum, or otherwise to protect him and the office he holds 
from the wicked assaults of men who but yesterday stood with bloody hands and uplifted 
arms madly and traitorously compassing the destruction of all law.”—A. I now remember 
a reference to the opinion of Mr. Shorter. 

Q. Do you recollect whether that, was the demand made upon you.—A. I recollect that 
occurred when the demand was made. 

Q. Do you recollect the fact that the letter of John Gill Shorter did suggest what the 
communication of the judge stated it did.—A. No, I do not. 

Washington, D. C., January 20, 1869. 

J. O. D. Smith srvorn and examined. 

By Mr. Semple : 

Question. State your age, occupation, and residence.—A. I am 34 years of age; I was a 
practicing lawyer before I was appointed register in bankruptcy. .1 reside at Wedowee, 
Alabama. 

Q. In what district were you register in bankruptcy.—A. The 3d congressional district. 

Q. When were you qualified as a register.—A. Some time in December, 1867. 

Q. State to the committee what passed between you and Judge Busteed at the time of 
your qualification.—A. I do not know that I am able to do that. I met Judge Busteed at 
the Battle House in Mobile, introduced myself to him, and handed him a letter of introduc¬ 
tion from J. Q. Smith. The judge treated me kindly and courteously, seemed to take a great 
deal of pains to wait upon me and fix me up, approved my bond, and swore me in as register. 

Q. Was anything said as to who had obtained for you.—A. I think he said he had been 
to a great deal of trouble about it. I cannot recollect exactly what was said. 

Q. What was the substance of what he said.—A. My best recollection is that he said he 
had been to a great deal of trouble about the appointment; that General Swayne had 
defeated me, in the first instance, in getting Doster appointed, and that as Doster had turned 
out as he did, he thought General Swayne ought to be ashamed of himself. 

By Mr. Eldkidge: 

Q. State everything that occurred between you and Judge Busteed at that time.—A. I 
cannot recollect anything more in relation to that. 

Q. Did he state what trouble he had been to.—A. No, sir. 

Q. Did he state what he had done.—A. Not that I recollect. 

Q. What led to his saying that he had been to a great deal of trouble.—A. I cannot tell 
you. We sat talking as men usually do ; he fixed my business, aud simply remarked, after 
it was all over, that it had cost him a great deal of trouble to get the appointment. 

Q. What did you reply to that.—A. I do not recollect what I did say. 

Q. Is that all that you recollect his saying.—A. Yes, sir. 

Q. Was that the first time you had ever seen him.—A. No, sir; I think I was introduced 
to him by General Spencer on the street in Montgomery, previous to that. But I had no con¬ 
versation with him at the time. 

Q. Was there anything said then about your being an applicant for this office.—A. No, sir. 

Q. Were you an applicant at the time you were introduced to him in Montgomery-—A. 
Yes, sir; but I never mentioned it to him, nor he to me. 

Q. Had you been defeated then.—A. It was made known pretty soon after that—in fact, 
while I was in Montgomery on that trip—that Doster got the appointment. 

By Mr. Churchill : 

Q. Were you defeated in the appointment by Chief Justice Chase.—A. It is impossible for 
me to say. I cannot tell whether I was nominated by Chief Justice Chase, or whether some¬ 
body else was nominated in the first instance. 

Q. Were you an applicant to Chief Justice Chase for appointment.—A. Yes, sir. 

Q. Did he send your name forward to Alabama before the nomination was confirmed.—A. 
I do not know how that is. 



172 


By Mr. Eldridge : 

Q. Did you know of General Swayne’s opposing you.—A. No, sir; I did not. 

Q. You spoke of General Swayne in your direct examination.—A. I only spoke of what 
Judge Busteed said. 

Q. What did he say about that.—A. I have stated all that I recollect. He simply said 
that he had been to a good deal of trouble about that thing. 

Q. What did he say about General Swayne.—A. He said that General Swayne ought to 
be ashamed of having Doster appointed. Doster had recently made a political speech, to 
which he referred. 

Q. And all that you know about General Swayne in the matter is what Judge Busteed 
said to you.—A. Yes ? I ne ; ver had heard General Swayne say a word about it. 

By Mr. Semple: 

Q. What did you then do about the business of register in bankruptcy.—A. I returned 
home and set up an office at Opelika. This was about the 20th of December, 18(5/. I 
received petitions and swore parties to the petitions when they brought them in, and collected 
•$50 as register fees. 1 forwarded these petitions to Montgomery. 

By Mr. Churchill : 

Q. Yourself retaining the $50.—A. Yes, sir. 

By Mr. Semple: 

Q. What happened then.—A. I do not know that I can tell you. I know that I got a 
letter from the clerk of the district court, stating that he required $20 for each case—$10 tor 
himself, and $10 for the marshal. I do not recollect at what time I got that letter; but 1 
think some time in January or February, 1868. 

By Mr. Eldridge: 

Q. Have you got that letter now.—A. Not with me, I think; it is in my office. I filled 
it, and I suppose it is there yet. Sometime in February, 1868, I got a letter, signed E. C. 
Y. Blake, dated at Montgomery, February 12, 1868, and post-marked Montgomery, Feb¬ 
ruary 13. 

(The witness produced the letter, as follows:) 


“Montgomery, February 12, 1868. 


“Dear Sir: In future, petitions in bankruptcy will not be filed until the $50 is deposited 
with the clerk, as required by law, and the clerk’s fees paid in advance, or ample security. 
Judge Busteed arrived here yesterday morning, in quite a feeble condition, unable to attend 
to any business. 

“Yours, respectfully, 

“E. C. V. BLAKE, 

“ Cltr/c U. S. District Court. 


“ J. O. D. Smith, Esq.” 


By Mr. Churchill : 

Q. Do you know whether that letter is in the handwriting of the clerk.—A. My opinion 
is that it is the handwriting of Mr Stover. He told me he wrote the letter. 

Q. Mr. Stover, the deputy clerk.—A. He never appeared to me as the deputy clerk. I 
went to Montgomery to see Mr. Stover, and I asked liim if he meant what he wrote in that 
letter. He said that he did. 

Q. Did you see Mr. Blake at that time.—A. No, sir; I had not seen him up to that time. 

Q. In what capacity was Mr. Stover acting.—A. He was in the office there. 

Q. Was he performing the duties of deputy to the clerk.—A. I suppose he was ; he was at 
work in the office issuing orders of reference and filing petitions. 

Q. Performing the duties that would have been the proper duties of a deputy.—A. Yes, sir. 

Q. Give the whole conversation you had with Mr. Stover.—A. It was very short. I asked 
him if he meant what he wrote in that letter. He said he did. Said I, “ What law is it that 
requires a register to pay his fees to you;” “by what authority do you make this demand of 
me?” Said he, “Judge Busteed told me to do it, by a verbal order. He did not give it in 
writing.” 

Q. Is that all.—A. That ended the conversation. 

Q. Did you see Judge Busteed on that visit to Montgomery.—A. No, sir; I learned from 
parties that he had gone out to his plantation in the country a few minutes before I got there. 
The statement made to me was that the judge was not in good health and wanted to get out 
to a quiet place. 

By Mr. Semple : 

Q. After that, what course did you pursue as to the $20 fees to the clerk and marshal, and 
the $50 register’s fees.—A. I returned to my office at Opelika and let parties swear to peti¬ 
tions and deposit with me $50 register’s fees, and $20 for the clerk and marshal. I retained 
those papers; did not file them at Montgomery, but kept them in my office, with the fees. 

Q. What papers did you keep and not send to the clerk’s office.—A. The petitions 


173 


and schedules of bankruptcy. Some time after, General Spencer came to my office from 
Montgomery, he and Mr. John Hardy, the former marshal; I cannot say as to the time. 
General Spencer said to me that he wanted me to get on the train and go with him as far as 
West Point. I did so. He told me to forward petitions in bankruptcy, with the clerk’s fees, 
and that they would be filed. I showed him this letter from Blake, and my recollection is 
that he pulled out of his pocket a letter, and said he had got a similar one, and showed it 
to me. 

By Mr. Churchill : 

Q. Is that the whole conversation between you and General Spencer.—A. No; I do not 
know that I can give the whole conversation. 

Q. State anything else you can recollect relating to the subject.—A. He said to me that if I 
would send the petitions, with the clerk’s fees, they would be tiled ; and, said he, “if anything 
gets wrong in them, let me know and I will right it.” That is the substance of what he did 
say. 

By Mr. Eldridge : 

Q. What did he mean by anything getting wrong.—A. I suppose in relation to filing 
papers or issuing orders. This letter that I received had stated that they would not file peti¬ 
tions till the $50 was paid ; and I refused to pay it, and did send the papers there. 

Q. Did he say anything about the letter that he had received.—A. He simply handed it to 
me, and said it was a similar letter. 

Q. Did you read it.—A. I think I did ; I got the clerk’s receipt for his fees in those cases 
that I then forwarded; there was quite a number of them; and orders of reference were 
issued, referring the cases to me for adjudication ; but not all of them, I think. I have got 
another letter here, dated Montgomery, March 13, 1868. 

(Witness produced and read the letter, as follows:) 

“ Dear Sir : Your letters of the 10th came safe to hand : also the $80 in the cases of J. 
W. Andrews and J.L. Andrews, Far. Id. Trammel, Win. Ogletree and Reuben C. Harrist. 
I have also received the petition of Jesse Wilkeson, assignee, which petition has been duly 
granted, and only waits your compliance with rule 4 of the court in bankruptcy, which rule 
requires the assignee to hie the assignment on receipt of the same, with the clerk of the court, 
the clerk to make a certified copy of the assignment, and return it to the assignee. I have 
quite a number of cases from your district to refer; but the $50 has not been paid into court, 
as I some time since wrote you must be done; consequently cannot refer. I enclose you 
receipts in W. S. Bonham’s case. I also received $60 this moment from Thomas L. Kenney 
in the three cases left here. Will attend to them soon. 

“Yours, respectfully, 

“E.C.V. BLAKE, Clerk. 

“ J. O. D. Smith, Esq.” 

Q. Who was that letter written by.—A. By Mr. Stover, I think; it is in the same hand¬ 
writing as the other. 

By Mr. Semple: 

Q. What did you do then.—A. I wrote a letter to the clerk, addressed to Mr. Blake, 
stating to him that I would not deposit my fees with him until I was satisfied that the law 
required me to do so ; I think I wrote to General Spencer that my business was hung up ; I 
did not get any more orders of reference for some time; I do not recollect how long; but I 
got a letter frt m General Spencer, dated Montgomery, Alabama—I have not got it with 
me—stating to me that my cases were referred to me, and that he wanted to see me; I do 
not recollect the date of that letter, but it was subsequent to the date of the last letter. 

By Mr. Churchill : 

Q. How' long was it after your letter to him informing him that your references had been 
suspended.—A. I do not think it was a great while; I sent him a despatch that if he would 
wait I would go down to Montgomery ; he answered me that he would ; I went down and 
met him in Montgomery; I understood that Judge Busteed had left town that morning, and 
did not see him. 

By Mr. Eldridge: 

Q. State what took place at that interview between you and General Spencer with refer¬ 
ence to that matter.—A. My recollection is that when I got there he told me to go round to 
the clerk’s office ; I got my papers that evening or the next morning, I do not recollect which; 
he said to me that he had given Judge Busteed—my recollection is that he used the word 
“ given”—$1,000, or that he had given him a check, and that it had been accepted ; and 
said, “ I would advise you to do the same thing ;” I told him I did not like to do a thing of 
that kind. 

By Mr. Churchill: 

Q. What conversation preceded that statement of his with regard to the subject of the sus¬ 
pension of your references.—A. We were talking about that matter nearly all the time. 

Q. Give the line of the conversation, as nearly as you can, from the time you met him 


174 

there until he came to that point where he mentioned this gift.—A. I think that was as we 
returned from the clerk’s office. 

Q. What took place at the clerk’s office. Whom did you see there.—A. We saw Mr. 
Stover, I think; 1 don’t think Blake was there. 

Q. What was said there about those references.—A. I do not recollect. 

Q. Did you succeed in making any arrangement there, such as you described.—A. I do 
not recollect that I said anything to the clerk about it. 

Q. Did General Spencer say anything about it to the clerk.—A. No; General Spencer 
and I went into Mr. Worrall’s office, right through the clerk’s office, into where Register 
Worrall was at work at his table; I don’t think we had any conversation with the clerk 
about this matter at all. 

Q. What conversation had you with Worrall about it.—A. I did not have any, right at 
that time. 

By Mr. Eldridge : 

Q. Did you get any orders of reference at that time.—A. I did. 

Q. How many.—A. I don’t recollect. 

Q. All that you had sent.—A. Yes; I think they covered all the cases on file there. 

By Mr. Churchill: 

Q. And you got them before you left the clerk’s office.—A. I don’t recollect whether it 
was that evening or the next umrning, but my recollection is that I got them and took them 
home. 

Q. Had it been arranged before you went to the clerk’s office that you should get them.— 
A. It Avas, I suppose, arranged before I got there. General Spencer wrote to me that it was 
all arranged. 

Q. Relate the conversation about the gift.—A.. Wlien I got there General Spencer told 
me that the business was all rigtit; and in talking about it I think he said, “If you want 
to go on with your business you had better do that.” 

By Mr. Eldridge : 

Q. What reason did he assign for making the gift.—A. He assigned the reason that it 
was better to do it than to have the business turned in a different direction. 

Q. Did he say that was the reason he had given this $1,000.—A. No, sir. My recollec¬ 
tion is he said, “I am a very observing man; I saw that it was necessary for me to do 
something in order to c irry on my business, and I made Judge Busteel a present of $1,000, 
and he accepted it, and I advise you to do the same thing.” 

Q. What do you mean by business going in another direction.—A. It Avas within the 
power of Judge Busteed to refer cases to any register in the district that he had a mind to. 

Q. Had any of your cases been referred to any other register.—A. I don’t know that 
they had been at that time, except one or tAvo cases, in which, I suppose, it Avas done at the 
instance of the parties themselves. 

Q. Then these cases that Avere not referred immediately to you Avere left there tied up, and 
were not referred to anybody else.—A. No, sir; not that I know of. 

By Mr. Semple : 

Q. Go on and state the conversation betAveen you and Spencer.—A. I roomed Avith Gen¬ 
eral Spencer that night at Pizzali’s hotel. He told me that I had better pay $500 then. 1 
told him that the clerk had about $4,000 of fees due my district, and that I Avould give an 
order upon him for that amount of money ($500) for Judge Busteed. 1 did not know that 
the fees would be due me until I had done the Avork. He asked me then to go into Wor- 
rall’s room, in the hotel; we rvent in, and he said to Mr. Worrall, “I liaA'e mentioned that 
matter to Smith, and it is all right.” 

Q. Lid Worrall say anything.—A. I think he said that Judge Busteed Avas needy; that 
he had a large family, and that his salary did not much more than pay the expenses of hold¬ 
ing his court; that he had to go to Mobile and Montgomery and Huntsville. That is all 
that Worrall said, I think. 

By Mr. Eldridge: 

Q. Did Spencer reply to that.—A. I do not recollect. We did not remain in Worrall’s 
room more than a few minutes. He Avas engaged Avriting Avhen Ave Avent in there. 

Q. Did you make any reply to it.—A. 1 don’t recollect what I did say. 

By Mr. Churchill : 

Q. Was the sum mentioned that you had agreed to give.—A. No, sir; there Avas nothin^ 
said about the amount of money. When Ave Avent back to General Spencer’s room he told 
me he did not think the order would do; that I had better pay the money. I told him 
that if that would not do the whole ttiiug might go; that I would have no more to do with 
it; that those fees Avere there and that I could not get them, and that if they would not take 
money out of them it might go. 

By Mr. Eldridge : 

Q. Did General Spencer give you any reason Avhy you should pay that money.—A. He 
said he thought I had better do it if I wanted to hold on to my business. 


Q. Is that all the reason he assigned.—A. I think so, at that time. 

Q. Did he assign any other reason at any time for your paying that $500.—A. I will 
come to something else after a while. 

By Mr. Churchill : 

Q. What was this $4,000 that you spoke of as in the hands of the clerk.—A. It was 
deposited before I was qualified as register. 

Q. It was not a part of the money that was paid in cases which had come before you after 
you qualified.—A. No, sir : I never paid any of the fees myself. Those fees had been paid 
in by parties who had filed their papers there—some of them before I qualified, and some of 
them afterwards. The work in those cases was being done by me. 

Q. So that this fund would eventually come to you.—A. Yes; that was the intention, I 
suppose. 

Q. Go right on through the whole matter, in the order in which it occurred, without 
further questioning.—A. I would rather be asked the questions. I got no more orders of 
reference after that conversation between General Spencer and me at Bizzali’s hotel, up to a 
time he stated. 

By Mr. Eldridge : 

Q. Did you get orders of reference previous to this conversation with General Spencer.— 
A. Yes, sir. The thing went on without any intimation from the clerk, or anybody else, 
and I gut no more references for a time. 1 think that it was in June that General Spencer 
came into my office at Opelika and told me that Judge Busteed was on the train. I went 
down and saw Judge Busteed on the train, and talked with him a little while, till the train 
moved off. I returned to my office, and General Spencer said to me, “ When I got to Mont¬ 
gomery 1 found the cleik referring your cases to Worrall.” He added, “You had better 
have done what I told you to do.” I said to him that I was ready to do it then—all that I 
said 1 would do. He said he did not know whether it would answer or not; but he said he 
would not say that the thing could not be effected yet for me to get the business. I said to 
him that I would not pay the money ; that I would give the order yet, if that would do any 
good ; that I would woik up the business I had and quit the concern, and have nothing 
more to do with it. 

Q. What conversation did you have with Judge Busteed on the train.—A. Nothing in 
relation to this at all. It was a mere friendly conversation. I just met him and shook bauds 
with him. No reference at all was made to this matter. I believe 1 mentioned to him that 
I would like to go home through the summer and remain there, and I believe he sanctioned 
my going. When 1 told General Spencer that I would not do anything more than give the 
order, he said he thought I had better give the money and get my business. I told him that 
I would woik up the business I had and quit it. He said 1 could not do that, because an 
order for the second meeting of creditors would have to be issued out of the court, and I 
could not get ir, and these orders would be all made to Worrall. It is impossible for me to 
recollect all that was said and the way in which it was said. My mind was not so much 
upon words used as upon ideas conveyed. But I authorized my brother, Robert T. Smith, 
to give an older to the clerk for $500, provided it would let my business come; if not, not to 
give it. The thing went on ; I had not yet got any orders. I saw General Spencer on the 
train at Opelika, going towards Montgomery. I do not recollect the time, but I think it was 
about the time that the legislature of Alabama assembled in July, 186^. He asked me if I 
had my business; 1 told him no. Said he, “I do not understand that.” Said I, “Ido 
not understand it either.” Said I, “I understood that in consideration of that $500 order 
I was to get it.” Said he, “ Yes, there is no doubt about that.” Said he, “ If }ou will go 
with me to Montgomery, I will stay over to-night.” He staid wiih me that night, and I 
went with him next morning to Montgomery. While I was down there I got orders of ref¬ 
erence. 

By Mr. Churchill : 

Q. In all the cases.—A. I suppose in most of them ; I do not know ; Mr. Blake was there 
then I saw him there, and that was the first time I did see him. General Spencer said to 
me that Blake was not going to take the order. 

By Mr. Eldridge : 

Q. What order. — A. I suppose the order which I authorized my brother to give him. I 
never have had a settlement with the clerk; I never mentioned it to Blake nor he to me. 

By Mr. Churchill : 

Q. You have never seen the order for $500 at all.—A. No, sir. All I know is, I author¬ 
ized the giving of it. 

By Mr Eldridge : 

Q. If any order w r as given it was drawn by your brother.— A. Yes, sir; I authorized him 
to give it, and he told me he did give it. 

Q Was anything said about the order, further, at the time when you said to Spencer that 
you supposed that in consideration of that $5<>0 your business was to come. Did he tell you 
that the order had been given.—A. No, sir; I had not seen Spencer up to that time. 


176 


Q. He spoke as though the order had been given.—A. Tie used the language T have 
repeated. I said I supposed that in consideration of that $500 order I was to get my busi¬ 
ness. Said he, “ Yes, that is so; there is no doubt about that.” 

By Mr. Semple; 

Q. Were you a soldier in the army of the United States. — A. Yes, sir. 

Q. When you said to Spencer that you would not like to do such a thing, was anything 
more said. — A. I cannot recollect all that was said ; it would be impossible for me to do it, 
but the substance of what he said, or of the ideas he conveyed was, that I had better do it. 
Said he, “ You had better give, the $500 now.” 

Q. Did General Spencer, at that time, say anything about what passed between him and 
Judge Busteed, at the time of the gift.—A. I think I said, “ I do not know how to approach 
Judge Busteed and tell him that I would give him money to return my business to me.” 
And 1 think he said that he did not do it exactly in that way; that he told Judge Busteed 
that he had been shot, and that additional duties had devolved upon him, growing out of 
the bankrupt act, and that he would make him a present of $1,000. 

Q. Was anybody present at the conversation which you had with General Spencer, at 
Opelika.—A. Robert P. Smith and Dallas B. Smith, brothers of mine, were present part of 
the time. Part of the conversation was in my office aud part in theirs. 

Q. You mentioned that you declined to pay the money, but said you were willing to give 
the order for $500. Do you recollect having used any strong expression in reference to 
declining to give the money ; if so, what was it.—A. I think I told him I did not like to do 
a thing of that kiud ; that there was about $4,000 due to my district, which I had been unable 
to obtain, and that I did not know whether I would ever get it or not; and that, if an order 
for $500 out of that amount would do, I would give it. 

Q. And if not, what.—A. That I would just let the whole thing go. 

Q. What expression did you use when you said you would let the whole thing go.—A. I 
think I said I would let the thing go to hell; that is the best of my recollection. 

Q. What was the first time that General Spencer, or anybody else, spoke of Mr. Blake 
having refused to take the order.—A. Some time in July, lSdS. 

By Mr. Ellridge : 

Q. How long was that after you understood the order to have been given to Blake.—A. 
The order was given to him some time in June, perhaps. 

Q. Did you at any time have a conversation with Judge Busteed, personally, with refer¬ 
ence to this businees of referring these cases to you.—A. No, sir. 

Q. Never spoke to him on that subject.—A. No, sir. 

Q. Did he to you.—A. No, sir. 

Q. Have you had any conversation with him by which you can state that he knew any¬ 
thing about how this business was managed.—No, sir; I could not. 

Q. Do you know of any fact that wouid show that Judge Busteed did know it.—A. Not 
that I have not told you already, that I recollect of now. 

Q. You have stated all that you know in reference to his connection with this business.— 
A. I do not recollect of anything more. 

By Mr. Woodbridge : 

Q. Did you ever have any conversation with Judge Busteed respec iug this matter, one way 
or the other.—A. No, sir. 

By Mr. Eldkidge : 

Q. Have you stated all the conversation that you had with Blake.—A. There was no such 
conversation between Blake and me. 

Q. You never mentioned the subject to Blake.—A. I have no recollection of it. 

Q. Did you to Worrail.—A. No more than what was said the night I was in his room. 

By Mr. Churchill : 

Q. The single conversation you have mentioned.—A. Yes, sir. 

By Mr. Ei.dridge : 

Q. You never referred to that matter again, you or he.—A. No, sir. I do not think I 
have seen Worrail since that time, to speak to him. 

By Mr. Churchill : 

Q. Was there any conversation between yourself and any of the other registers in bank¬ 
ruptcy in the State, in regard to making any present to Judge Busteed, except these conver¬ 
sations with General Spencer aud Healy that you have mentioned.—A. No, sir. 

By Mr. Eluridge : 

Q. Did Spencer in any of these conversations tell you of any conversation he had with 
Judge Busteed about the taxation of the fees in bankruptcy cases.—A. No, sir. 

Q. Was anything said between you aud him in any of these conversations that this 
matter ot the final taxation of your fees might depend in any manner upon Judge Busteed’s 
decision.—A. 1 do not recollect about that. 


177 


Q. Do you recollect any conversation between you and him about the difference between a 
Mississippi fee-bill and a New York fee-bill in those cases adjusted by the courts.—A. All I 
recollect about a fee-bill with him is that he gave me a decision of Judge Blatchford, of New 
York, I believe made on register’s fees, and I took a copy of it. 


By Mr. Woodbridge : 

Q. In the fees that you charged have you followed that order of Judge Blatchford.—A. 
Yes, sir. 


By Mr. Eldridge : 

Q. Do you know anything about the Mississippi fees.—A. No, sir. I perhaps was going 
too fast when I said I made up a fee-bill after that order of Judge Blatchford’s. I haven’t 
made up any fee-bills since that time. I haven’t made up my charges. 

By Mr. Churchill : 


Q. But in your own register business you have charged.—A. I took the deposits. 

By Mr. Eldridge : 

Q. What is the aggregate amount, as near as you can now state, of the fees you have 
earned as register. — A. I do not think I could come to any definite conclusion on that sub¬ 
ject. I have never received a fee-bill yet. 

Q. What is your opinion of the amount.—A. Well, I would have to estimate that. I do 
not know what my fees are in some cases. 

Q. Haven’t you thought of that subject—of what you have earned.—A. I have drawn up 
about 300 cases, and made assignments perhaps in 150 or 200. 

Q. Give an approximate idea of what you suppose your fees to be.—A. I think it would 
be safe to say that I have earned $3,000. 

Q. That would average about $10 in each case.—A. Yes, sir. 

Q. Have you kept $50 in each of those cases.—A. Well, no. In most of the cases 
they have deposited with me $50 in addition to the clerk’s and marshal’s fees to secure the 
registry office. 

Q. So that they have in most cases deposited $70.—A. Yes, sir. 

Q. And you have paid over to the clerk $20.—A. Yes, sir. 

Q. The balance is in your hands.—A. Yes, sir. 

Q. And you have in your hands $50 in 300 cases.—A. Well, I do not know that I have 
in 300 cases. I reckon not. 

Q. Since that time when you said if they would not take the order the whole thing might 
go to hell, have the cases in your district been regularly referred to you.—A. Well, in the 
order I have stated, they have been referred. 

Q. That is about the last interview you had with Spencer.—A. Yes, sir; I got some cases 
after that. 

Q. Have you had all the cases that belonged to your district since that.—A. I have had 
no orders of reference since that time, until the other day when I was in Montgomery; a few 


days before I started up here. 

Q. When was this.—A. I think I went to Montgomery the 31st of December, 1868, and 
I was there on the 1st of January, 1869. I do not recollect whether it was the 1st or 2d 
day of January that I got some orders from the clerk; the first I had since July. 

Q. Did you get these personally from the clerk.—A. Yes, sir. 

Q. What was said at the time the clerk gave you these.—A. I do not recollect more than 
that they didn’t give me orders for all the cases I had there. They said they were busy and 
didn’t have time to fix it up, but would attend to it. 

Q. Did you go there for them.—A. Yes, sir; I carried down some of the others with me. 
The 50 per cent, clause of the bankrupt act expired on the 31st of December, and I took in 
all the cases that came up and got on the train on the evening of the 31st and carried them 
in myself to see that they would get filed. I had sent down some cases previous to that, 
and I got orders for a part of them, but they said they were busy and could not attend to 
them all. 

Q. And those were the first cases you got after the time that you stated the whole busi¬ 
ness might go to hell.—A. No ; I got some cases in July. It was in June, I think, that I 

said that. . 

Q. In any of the conversations in which Spencer urged you to give the judge money, 
did he say to you that the judge expected any money of you.—A. No, sir; he did not say 


Q. Did he say to you that the judge deserved any money of you.—A. No, sir; I think not. 
Q. Did he say anything like that.—A. I think I have given, to the best of my recollec¬ 
tion, what he did say. 

Q. But you do not pretend to have given all of it.—A. No, sir. 

Q. Did he say anything about the judge expecting, deserving, or beiDg worthy of it, or 
anything of that kind.—A. I do not think he did. 


Q. 


By Mr. Churchill : 

Did he tell you that he told the judge.—A. That calls to my mind something that I 


12 B 


178 


omitted before. At the time he came to my office—I think it was in June—he said when he 
came to Montgomery—I think ho said, he got a letter from Worrall stating that if this 
money did not come up from me, that his, Spencer’s, business would be stopped. I think 
his language was to the effect that if I did not do this—that is, pay in this money—that his, 
Spencer’s, business would be stopped. I think it was a letter from Worrall to that effect. 

Q. In speaking of what he said to the judge when he gave him $1,000, did he say that 
he said to the judge at that time that he should try to persuade you to give him the same 
sum also, or anything of that kind.—A. I do not recollect it. 

By Mr. Eldridge : 

Q. Then Spencer’s appeal to you to pay the money was so as not to have his own business 
stopped.—A. I do not know that I could state it that way. The impression made on my 
mind was that Spencer, as a personal friend of mine, was anxious that my business should 
go on, and that he was taking an interest in my business on that account. But when he 
stated that, I supposed, as a further inducement for me to do this thing, that he had received a 
letter from Worrall to the effect that if I did not do this thing his, Spencer’s, business would 
stop. 

Q. You did not see that letter.—A. No, sir ; I never saw it or asked him for it. 

Q. In what conversation was that.—A. That was in the June conversation—at the time 
he came to my office from Montgomery. This order here shows the date. The order is 
dated the 2d. It was about the first of June that this conversation was had. 

Q. It was at the time when you authorized your brother to give the order.—A. Yes, sir. 

By Judge Busteed : 

Q. You met Mr. Worrall at Mobile at the same time that you met me there.—A. Yes, sir. 

Q. I introduced him to you, didn’t I.—A. I think you did. 

Q. Worrall treated you with politeness, didn’t he.—A. Yes, sir. 

Q. And has ever since, I believe.—A. Yes, sir. 

Q. You recollect asking him to go and get a little check cashed for you.—A. Yes, sir ; he 
went with me to the bank. 

Q. That was drawn to your order, wasn’t it.—A. Yes, sir ; he went to identify me. 

Q. You didn’t want to endorse the check, did you ; you thought you could get the money 
without an endorsement.—A. Yes, sir. 

Q. And he told you you could not do that, but would have to put your name on it.—A. 
He told me that I would have to get somebody to endorse for me. 

Q. Have you a distinct recollection of having met me at Montgomery before you came to 
Mobile.—A. Yes, sir; I was introduced to you on the street by General Spencer. 

Q. Did we stop and converse.—A. No, sir. 

Q. Passed immediately on.—A. Passed right on. 

Q. Have you an iron safe in your office.—A. No, sir. 

Q. Is there one in Opelika.—A. Yes, sir; I think there is. 

Q. Do you know of any.—A. Yes. 

Q. Where did you deposit your money as bankrupt register.—A. Well, sir, I have not 
made any deposits in the bank. 

Q. Where did you keep them.—A. I lent it to the State—a portion of it, most of it. 

Q. How much of the moneys coming to your hands as bankrupt register have you loaned 
to the State.—A. Something over $7,0(J0. 

Q. When was that loan made—A. It was made some time in July, 1868, I think. 

Q. Your brother William is the governor.—A. Yes. 

Q. He knows of your being a bankrupt register, doesn’t he.—A. Yes. 

Q. Did he know that these moneys which you loaned to the State were received by you as 
register in bankruptcy.—A. Well, I suppose he does. 

Q. Did he at the time, I mean.—A. 1 suppose he did. 

Q. Were any bonds issued to you.—A. I got a note. 

Q. Whose note.—A. A note in the name of the State of Alabama. 

Q. Who made it.—A. Signed by the governor and attested by the secretary of state. 

Q. Signed by your brother William.—A. Yes. 

Q. Have you got that note with you.—A. No, sir. 

Q. Can you state the contents of it.—A. I do not know that I can. 

Q. State as near as you can.—A. I think it says—well, no, I won’t undertake to state 
it, for it is in existence and I can produce it. 

Q. Have any bonds been issued to you for this.—A. No, sir ; the note is all the evidence 
I have. 

By Mr. Woodbridge : 

Q. Have you any security except this note signed by the governor and attested by the sec¬ 
retary of state.—A. No, sir; not for that amount. The note is payable on demand, I will state. 

Q. Is there any law allowing money to be lent in that way.—A. I do not know of any. 
I do not know whether it provides how it shall be done. 

By Judge Busteed: 

Q. You have held bonds of the State of Alabama.—A. I have held some convention cer¬ 
tificates. 


179 


Q. How many and for what sum.—A. Nine hundred and some odd dollars. 

Q. Were any of the funds which you received through your office as register in bankruptcy 
invested in the bonds of the State of Alabama.—A. I will say this, without answering the 
question, that I had bought convention certificates to the amount of something over $900. 

1 thought the money that I bought them with had been earned by me—thought I had earned 
that amount of money in the fees that had been deposited with me as register in bankruptcy. 

Q. At what rate did you pay for those certificates.—A. I paid 75 cents on a dollar for some 
and 80 cents on a dollar for some. 

Q. Their par value being what.—A. One hundred cents, I suppose. 

Q. Mr. Semple asked you whether you were not a soldier in the army of the United States.— 
A. I answered him I was. 

Q. When did you enter the army, and where, and in what capacity.—A. Well, I cannot 
answer that question directly. I entered the army in Mississippi. I do not recollect 
whether it was in 1863 or 1864. It was about the going out of 1863 or the coming in of 
1864. I entered in the capacity of an enlisted man. 

Q. Under whom ; in what regiment.—A. The first Alabama cavalry, Colonel George E. 
Spencer. 

Q. How long previously to your enlistment had you been in and around the camp of 
George E. Spencer.—A. I think I came to his camp in the fall of 1863 ; was there but a short 
time when he took his regiment and moved out on a raid in Alabama, and I went with him 
and with his regiment; and pretty soon after we returned I enlisted in his regiment. 

Q. Can you state how long you were in and about the camp of General Spencer before 
you enlisted in the army.—A. No, sir, I cannot. I can state this, that I came to his camp, 

I think, in September, 1863; I am not sure, however. 

Q. And enlisted when.—A. It was the latter part of 1863 or the first part of 1864. 

Q. What were you doing in the camp prior to your enlistment.—A. Well, sir, I do not 
think I had any occupation there. 

Q. What means of livelihood had you prior to your enlistment and while you were in the 
camp of General Spencer.—A. Well, sir, my means of livelihood were very scanty. 

Q. Did you not accept the bounty of Spencer.—A. I never had'his bounty. 

Q. You say you never received his bounty.—A. I do; if he ever gave me anything I do 
not recollect it; I got no bounty when I enlisted; I boarded with Lieutenant Hornback, 
who was lieutenant in my brother’s company; I did not eat with General Spencer, and I did 
not sleep with him, and he did not give me any money. 

Q. Did you enlist voluntarily into this regiment.—A. Well, it Avas my own act; the act 
of enlisting was my own. 

Q. Was your enlistment into the army of the United States a purely voluntary act of 
yours at the time it took place.—A. I will state the facts in regard to the time when I en¬ 
listed. I think there was an order issued by some general—Hurlbut, perhaps, who was in 
command at Memphis—impressing men into the service or drafting them. I saw General 
Spencer in regard to that order, and asked him first if I could be permitted to go back ; I 
wanted to go to North Alabama, where my brothers were recruiting a regiment; and he said 
I could go at any time. I said: “How can I get round the order ?” But Colonel Spencer 
told me, finally, that if I would stay and enlist in his regiment he would have me detailed 
as an ordnance sergeant, (I had made out some papers in the ordnance office before.) and 
that I should have good quarters, and that he would give me a commission soon. Then I 
enlisted ; I was not conscripted, and I was not drafted ; you can draw your own conclusions. 

Q. What part of Alabama did you practice law in before the rebellion of I860.—A. 
Wedowee; 1 obtained a law license just about the time of the commencement of these dif¬ 
ficulties. and hadn’t got fairly into practice; I went into my brother’s office there and kept 
business running as a lawyer, and perhaps my name was used in his firm. 

Q. And before your admission.—A. Oh, no; after I was admitted. 

Q. When were you admitted as a matter of fact to the practice of law. —A. I do not 
recollect; I think it was in July, 1860. 

Q. By what court.—A. The court of chancery. 

Q. For what circuit in Alabama.—A. It was not styled that way. 

How did you style it.—A. I cannot give it now; it runs in districts and divisions— 
chancery courts in Alabama do; it was in a certain district in a certain division. 

Q. What chancellor.—A. Chancellor Foster. 

Q. His first name.—A. John. 

Q. Do you know', of your own knowledge, wdio procured your nomination to Chief Justice 
Chase.—A. No, sir; I never saw him to speak to him. 

Q. Were you not written to and advised that the Chief Justice had written to Judge Bus- 
teed that there was no evidence of your being a lawyer on file here, and asked Judge Bus- 
teed to send the Chief Justice that evidence.—A. Yes, sir, I have some recollection of that; 
I think that the information I got was that I should send to him a certified copy of my law 
license. 

Q. Who wrote you that letter conveying that information to you.—A. I do not recollect 
now. 

Q. Wasn’t it John Hardy.—A. I do not know that I got a letter from Hardy on the subject. 


180 


Q. Have you ever conversed with me except on this occasion in Mobile, and on the occa¬ 
sion of seeing me upon June 2, as the cars were going through Opelika to the north.—A. 
No, sir; I think I mentioned that before. 

Q. Have you ever written to mo.—A. No, sir, I do not think 1 ever wrote you a letter in 
my life. 

By Mr. Eldridge : 

Q. Has the judge ever written yon.—A. I do not recollect nor think he ever did. 

By Mr. Semple : 

Q. Have you been paid any money deposited with the clerk for register’s fees; if so, how 
much, when, by whom, and under what circumstances.—A. Well, when I went to Mont¬ 
gomery, on the 31st of December, 1868, on the first or second day, or during my stay there, 

I went into the clerk’s office ; I told Mr. Blake that I wanted to see him in regard to my 
fees, and that I wanted them. He asked me if I had brought the cases with me, and I told 
him no. I said : “Your books will show.” Well, he said he was busy, and didn’t have 
time enough to refer to his books. I said, you can make me a payment just now as well as 
at any time, and I need a little money; you can pay me $1,500 now without running any 
risk; he said he would rather pay it all at once and be done Avith it; I insisted that he should 
pay it, and he gave me an order for $1,500, and I got it from the bank. 

Q. What bank.—A. A bank in Montgomery; I do not recollect which one; he was with 
me in the bank, and I handed it to the cashier there; that is all the money I ever obtained. 

I have got the order, as I stated before, for $500; but this $1,500 is the only money I have 
received, and I received that this month. 

By Mr. Eldridge : 

Q. Did Blake say anything to you about this order.—A. No, sir. 

Wednesday, January 20, 18,39. 

William H. Smith, gQvernor of Alabama, sworn and examined: 

By Mr. Semple : 

Question. Governor, will you state to the committee any conversation Avhich you had with 
General Spencer in relation to the payment of any money by him to Judge Busteed.— 
Answer. 1 had two conversations with General Spencer upon that subject. 

Q. When was the first conversation. — A. I do not remember when it Avas exactly. 

Q. Gi\ T e the time as near as you can.—A. It was sometime in July last. 

Q. The first conversation.—A. Yes. 

Q. Do you remember writing a letter to me.—A. Yes, sir. 

Q. Dated Opelika, July 2, 1868.—A. Yes ; I do not remember the exact date, but I remem¬ 
ber writing to you from Opelika. 

Q. That is your handwriting.—A. Yes. 

Q. Was the first conversation you had Avith General Spencer before that time or after.— 
A. It Avas after that time. 

Q. Will you please state Avhen Avas the conversation and Avliere Avas the conversation.—A. 
The first conversation was some time alter I wrote that letter, at Pizzari’s. In this conver¬ 
sation General Spencer said to me that he had to pay Judge Busteed $1,000 in order to retain 
his business, or obtain the business to Avhich he Avas legitimately entitled by virtue of his 
office. I had heard of it before, and I asked him if it Avas true ; he told me that it Avas. I 
wrote that letter upon information I had received from others that such Avas the fact. 

Q. Please state, governor, all that passed between you and him in that conA^ersation.—A. 
I do not remember particularly what Avas said. We talked a good deal about it. He spoke 
of it as a very great hardship upon him. He complained of Judge Busteed, and said that he 
could not help himself; he Avas in such a condition heAvas compelled to do it. We had con¬ 
siderable conversation about it. I do not remember the Avhole of our conversation, of course. 

Q. Did he say anything of the character of the constraint under which he acted.—A. I do 
not recollect that he did at the time. At a subsequent conversation Avith General Spencer 
on the same subject, some time after that, Ave talked more about it. I had repeated that con¬ 
versation to others ; it Avas not told to me as a secret at all; there A\'as no secrecy enjoined 
upon me ; I did not regard it as a confidential communication in any way. I had spoken of 
it to very many others in the city of Montgomery. Subsequent to that, a gentleman in the 
city of Montgomery told me (and that Avas the reason why I came to liaA r e a second conver¬ 
sation on the subject Avith General Spencer) that he had met General Spencer at a party at 
Miss Glascock’s, in Montgomery, and had had some conversation with him with reference to 
the statement which I had made that he had told me that he had been obliged to pay this sum of 
money to Judge Busteed, and, said he, “My opinion is that General Spencer is not going to 
stand up to what he said to you.” I expressed my astonishment at the statement; but very 
little was said. The next day General Spencer came into my office. I called his attention 
to it, and told him, “I understand youAvill deny Avhatyou said to me about Judge Busteed.” 
“ No,” said he, “ Avhat I deny is that I entered into any corrupt bargain Avith Judge Busteed; 
but I considered that what I did 1 >vas compelled to do; for I had no way to help myself, 


181 


and I paid him the $1,000 just as I would have paid my money or given my pocket-book to 
a robber with his pistol at my breast.” That is, in substance, what he said to me in the 
second conveisation. That is all, except that we talked considerably in the same strain. 
Mr. Dalton, my private secretary, was in the room at the time. I do not recollect whether 
any other persons were present. 

Q. Had you sent for General Spencer, or did he come of his own accord, to your office.— 
A. I think he came of his own accord; I do not remember sending for him. 

Q. What office is it you refer to.—A. The executive office at Montgomery. 

Q. You are governor of the State are you.—A. Yes, sir. 

By Mr. Eldridge : 

Q. Did you ever have any conversation with Judge Busteed about this matter, one way 
or the other.—A. I never did, sir. 

By Judge Busteed : 

Q. Did you write a letter to Henry C. Semple on the 2d of July, 1868, upon the subject 
of the supposed impeachment of Judge Busteed.—A. I think I did. 

Q. Look at the paper now shown you, and say whether that is your letter.—A. Yes, sir, 
it is. 

Judge Busteed read the following letter, viz : 


“Opelika, Alabama, July 2, 1868. 

“ Dear Sir : I sent from Montgomery letters of introduction to you at Willard’s Hotel. I 
wish you may be successful in bringing before Congress proof of Judge Busteed’s official cor¬ 
ruption. 

‘ ‘Another charge might be made and sustained by proof positive. That is, he forced George 

E. Spencer,-, and Burke, registers in bankruptcy, to pay him large sums of money, 

as a condition upon which they might exercise the functions of their office. He also forced 
upon L. W. Day, the clerk of the United States district court of Huntsville, the same con¬ 
ditions. These parties, if summoned before the committee, will prove the facts. 

“ I give you this information that you may act upon it at once; and you may feel assured 
that they will fully sustain all I have said. All quiet here. 

“ I am, very respectfully, 

“W. H. SMITH. 

“ Major Henry C. Semple.” 

Q. Before writing this letter had you attended any meeting of the lawyers in Montgomery— 
a private meeting, at which Judge Busteed was not present—upon the subject of getting 
him impeached.—A. I attended one meeting of that sort; and I believe but one. 

Q. When was that meeting held.—A. In May, 1867. I do not know that it was a private 
meeting. It was not a private meeting, that I recollect. 

Q. Where was that meeting held.—A. In the office of Stone, Clopton & Clanton, in the 
city of Montgomery. 

Q. How did you happen to go to that meeting.—A. Major Semple invited me to go there. 

Q. Was his invitation in writing.—A. It was. 

Q. Have you got his letter.—A. No, sir. 

Q. What did you do with it.—A. I do not remember ; I presume I threw it away among 
waste papers. 

Q. You went to that meeting; how many of the bar were there.—A. I cannot tell you. 
There were quite a number—all the leading members of the bar were there. 

Q. How many were present; were 100.—A. I would not say there were. 

Q. Were 50 present.—A. I should not think there were. 

Q. Were 25 present.—A. Perhaps there were. 

Q. Will you say that 25 members of the bar were present at that meeting.—A. No, I will 
not. I am not positive as to the precise number present. 

Q. How often had you seen Judge Busteed before May, 1867.—A. But once. 

Q. Where did you see him at that time.—A. I saw you in Washington. 

Q. Who introduced you to me.—A. I think M. J. Saffold. 

Q. Where.—A. In this building, 1 think. 

Q. Was it not at Willard’s Hotel.—A. No; I met you this side of the door of the Senate 
chamber, the first time in my life ; that is my recollection. 

Q. At this meeting which you attended in May, 1867, was there any money raised.—A. I 
have no recollection of any money being raised. If there was I did not know it; I remained 
there but very little time. 

Q. What part did you take in the meeting.—A. Not any. 

Q. Had you then been elected governor of the State of Alabama.—A. No. 

Q. How soon after that meeting were you elected governor.—A. I was elected in February 
afterwards. 

Q. In February, 1868.—A. Yes. 

Q. Were you a practicing lawyer at the time of that meeting.—A. I had been ; I was 
not doing much practice at that time. I had undertaken to superintend the registration 
under General Swayne. 


182 


Q. Had you been in Judge Busteed’s court frequently.—A. Not often. 

Q. How often before May, 1867.—A. Never. 

Q. You bad never seen, then, the way in which he discharged his official duties before 
that meeting.—A. Oh, yes; I had been present in court, but never had been engaged as 
counsel before him. 

Q. How often then had you been in Judge Busteed’s court before you went to this meet¬ 
ing.—A. Not often; I recollect being present in court upon one particular day. 

Q. When was that.—A. It was at the May term, in 1867. 

Q. Have you ever subscribed or given any money, or promised to subscribe, or promised 
to give any money to Major Semple or anybody else for the purpose of this impeachment.— 
A. No, sir. 

Q. Have you ever been asked to subscribe or to give any money for the purpose of this 
impeachment.—A. No, sir. 

Q. J. O. D. Smith is your brother; is one of your brothers.—A. Yes, sir. 

Q. Do you know how he came to be nominated as register in bankruptcy by Chief Jus- 
tice Chase.—A. No, sir. 

Q. It was not through your influence was it.—A. I filed an application for him at Wash¬ 
ington city. I went personally to see Chief Justice Chase about it, with an application and 
recommendation signed by General Dodge and various other persons of my acquaintance 
here. But afterwards another man was appointed to that position; a certain rebel Colonel 
Dorster. 

Q. He was nominated.—A. Yes; he was nominated. He was not confirmed because he 
could not take the oath. Afterwards my brother got the nomination ; I do not know how. 

Q. Without any of your influence. — A. Yes; I did not pay any attention to it. 

Q. You have had no personal difficulty with Judge Busteed in all your life.—A. No. 

Q. State if, of your own knowledge, you know of any act of judicial corruption upon the 
part of Judge Busteed.—A. No; I do not. I do not know anything much about your judi¬ 
cial career, of my own knowledge. 

Q. Why did you wish that Henry C. Semple might be “successful in bringing before 
Congress proofs of Judge Busteed’s official corruption.”—A. Because I believed it existed, 
simply. 

Q. What ground had you for your belief.—A. The ground I had for my belief was that 
it was what everybody said. It was the general impression in the county that you were a 
corrupt man, a corrupt judge, and it had become so general that the impression was made 
upon my mind ; I believed it was so. . 

Q. These were the sole grounds of your belief, were they.—A. Yes, so far as corruption 
is concerned. I did not know anything of my own knowledge. 

Q. Had you any personal feeling in this matter against Judge Busteed.—A. I never had, 
nor have I any now. 

Q. You say you have no personal feelings against Judge Busteed.—A. No, sir; I have 
none ; that is, I have no enmity against you; I do not wish you any harm in the world. 

Q. Do you believe that Judge Busteed has been a corrupt judge.—A. I do. 

Q. Would not that belief induce in you a corresponding feeling against him.—A. I have 
no hatred; I have a great want of respect for Judge Busteed. 

Q. You have a great want of respect for him.—A. Yes ; a very great want of respect. 

Q. It ends simply with that.—A. Yes; it ends there. 

Q. Who told you that Judge Busteed was corrupt.—A. It is in the mouth of everybody 
in the State of Alabama 

Q. O, tell me who —who has told you that Judge Busteed is corrupt.—A. I have heard 
hundreds say so. 

Q. State who they are; whom have you heard say that Judge Busteed is corrupt.—A. I 
cannot now recollect all, or anything like all of them; I have heard Henry C. Semple say 
so; I have heard Samuel F. Rice say so; I have heard William P. Chilton say so; I have 
heard John Whiting, of Montgomery, say so. 

Q. What is Whiting’s business in Montgomery.—-A. He is president of a railroad down 
there. 

Q. Who else have you heard say that Judge Busteed was corrupt.—A. I have heard mauy 
others say so. 

Q. Name any others, if you please.—A. I have heard General Wager Swayne say so. 

Q. Who else.—A. I do not know that I could particularize everybody I have heard say 
so; I have heard it repeatedly, and by very many persons ; in crowds and in various places. 

Q. I do not want you to particularize everybody ; particularize somebody ; who else have 
you heard say so.—A. I have heard General Spencer say so. 

Q. What have you heard General Spencer say on this subject.—A. I heard him say that 
you were corrupt, a villain, a rascal, and all that sort of thing. 

Q. Who else can you name who has told you so.—A. I have heard a great many men say 
that you were a bad man; I cannot particularize who they are. But I know I have heard 
it from a hundred persons whose names I cannot now recollect. It was such a common 
thing I have not tried to remember the identical persons whom I have heard say so, as I felt 
no especial interest in the matter, -and did not expect to be called upon to testify as to the 


183 


names of the particular individuals whom I have heard speak of the corruption of Judge 
Bus teed. r 

Q. Can you name any others.—A. Probably I might if I were to study into it. 

Q. Can you now name any others whom you have heard say so.—A. I do not now 
remember. I have heard it talked of in public companies; it has been the subject of gen¬ 
eral conversation. 

Q. Has any part of these conversations taken place in northern Alabama; and if so, in 
what parts of northern Alabama.—A. I do not remember that I have ever heard any man 
in northern Alabama say anything about you particularly. 

Q. Have you heard any person in the northern judicial district, comprising nearly one- 
third of the State.—A. Yes, I have. 

Q. Who was that person.—A. I heard Reuben Chapman making some complaint of you 
up there at Huntsville. 

Q. What did he say.—A. He said that you treated him badly in court. He complained 
of your conduct as judge. I do not remember exactly what he said. 

Q. Is that the only case you can name in which you have heard complaints made of 
Judge Busteed’s official conduct in northern Alabama.—A. I believe it is, so far as I remem¬ 
ber now. 

Q, As a fact, was northern Alabama loyal to the United States during the rebellion.—A. 
That depends upon what you call northern Alabama. I should say it was not. 

Q- What would you call northern Alabama—that northern Alabama which, in your 
opinion, was loyal during the rebellion.—A. If you mean a majority of the people, there are 
very tew localities in which that would be true; but if you mean that there were some per¬ 
sons that held out for the government of the United States, this was the case in northern 
Alabama, and in all parts of the State. 

Q. What have been your relations with General Spencer.—A. Very intimate. 

Q. Were you in the army. 

(Question objected to and waived.) 

By Mr. Woodbridge : 

Q. How early did you become acquainted with Judge Busteed.—A. I think I became 
acquainted with Judge Busteed personally in the latter part of 1866, or in January or Feb¬ 
ruary, 1867. I was up at Washington city while Congress was in session. 

Q. What time did he first go to Alabama to hold courts.—A. I think pretty soon after the 
termination of the war. 

Q. Well, what time do you think it was.—A. I do not remember what month ; I think 
it was in the fall of 1865. 

Q. Where were you residing at that time.—A. I was residing in Alabama. 

Q. How soon after that did it become a matter of public talk respecting the character of 
Judge Busteed.—A. I never heard a great deal said about it until some time in the spring of 
1867 ; I had heard some intimations given that there was something wrong going on with 
Judge Busteed, John Q. Smith, and John Hardy, I believe, but I never paid any attention 
to it; I really did not believe it; I supposed it was a slander ; when I first heard it I did not 
give credit to it at all. 

Q. Do you know when you first heard it.—A. No, I do not. 

Q. Was it prior to 1867.—A. I think I did hear something of it before that; but I heard 
but little of it and paid but little attention to it; I was up in the interior of the country at 
my home; I had lost everything I had during the war; I was trying to look up what little 
effects I had to support my family ; I did not go about the country much, nor, while he was 
holding his courts, did I come in contact with him for a long time, but still I heard it said, 
and repeatedly said, that Judge Busteed and certain officials connected with him were carry¬ 
ing on a system of cotton stealing and libelling men’s property to get fees out of them. 

Q. How early was it that you made up your mind that Judge Busteed was an unjust 
judge.—A. It was in 1867. 

Q. At what time in 1867.—A. It was in the spring of 1867. 

Q. How early in the spring of 1867.—A. I could not tell you exactly the time : it is diffi¬ 
cult for a person to recollect Avhen a change of that sort comes over his mind, unless he has 
some particular reason for recollecting it. I thought but little about it. 

Q. Was it as early as January or February, 1867.—A. No, I think not. 

Q. Was it as early as March, 1867.—A. I think not. 

Q. Was it as early as April.—A. No ; it was about May, 1867. 

Q. Now, what led you to that opinion in May, 1867.—A. It was the rumors I heard about 
the city of Montgomery, among the people there, and among parties who had business in 
court. 

Q. Had there been any rumors of that kind in circulation there previous to May, 1867.— 
A. I think there had been; I had seen some attacks upon Judge Busteed in the newspapers ; 
I made a great deal of allowance, considering that they were probably mere slanders ; I was 
of the opinion that some of our papers down there, which were hostile to the government of 
the United States, were attacking him for political purposes. 

Q. Do you, of your own knowledge, know of any corrupt or improper act of Judge Bus¬ 
teed in his official capacity.—A. I cannot say that I know of any corrupt acts. As I 


184 


remarked, I was in liis court once; I saw improper acts, but I could not say corrupt ones. 
I thought he w r as overbearing, tyrannical, arbitrary, and oppressive in his manner to the 
lawyers and witnesses in court, and that he was very ignorant of the law, or corrupt; but I 
took the charitable view of the matter, and imputed it to ignorance. 

Q. Did you live in Montgomery during the year 1866.—A. No; I lived 100 miles north of 
Montgomery. 

Q. Then, prior to 1867 you never had been in Judge Busteed’s court.—A. No. 

By Mr. Eldridge : 

Q. Do you know of any witness by whom any specific fact can be proved against Judge 
Busteed.—A. No; I know but very little about it; I have never had anything to do with the 
prosecution of Judge Busteed in any way ; I never knew what witnesses would swear to, 
and never tried to find out; I have never had any interest in the matter, except as to the 
question of veracity between General Spencer and myself, and I thought in that matter I 
could sustain the statement I had made. 

Q. Do you know of any written evidence that will sustain the statement you have made, 
wherein you conflict with the statement made by General Spencer.—A. No ; I do not know 
that I do ; but I want you to understand what I meant by that written testimony. I do not 
know what General Spencer’s testimony has been, except that Judge Busteed says I contra¬ 
dict him; I understand that he has given in testimony contrary to mine. 

Mr. Eldridge. General Spencer has said that he did not feel himself compelled to give 
money to Judge Busteed, but that he gave it because he felt that the judge had been injured ; 
that he (General S.) was getting large pay, and could afford to do it. 

Mr. Woodbridge. He also says that he has stated that to you on two or three different 
occasions. 

The Witness. He never said that to me. What I meant in referring to written evidence 
in that matter was, I had been informed that General Spencer would deny that he had ever 
given any money to Judge Busteed, and- 

Q. What written testimony can you furnish to sustain the position you take.—A. I do not 
know, except that he paid the money; and I thought it probable that he had signed his check 
for the amount, or given some paper which would be written evidence of the fact. 

Q. Do you know whether Burke and Day know anything in regard to this matter that the 
committee ought to inquire about.—A. I do not, of my own knowledge; I only know what 
General Spencer told me ; General Spencer told me that Day gave $500 and that Burke gave 
$1,000 to Judge Busteed. 

Q. Day was clerk and Burke was register in bankruptcy.—A. Yes, sir. 

Q. Did General Spencer tell you the reasons for Day and Burke giving this money to Judge 
Busteed.—A. I understood that their reasons were the same as had influenced him ; it was 
stated to me in the same conversation to which I have referred, and the impression left upon 
my mind was that they had given it in the same way as he said he had 

By Mr. Churchill: 

Q. Did not these statements which you had heard in Alabama unfavorable to the official 
honesty of the judge come, as a general thing, from persons who sympathized with the con¬ 
federacy.—A. I think they did generally, of course, but they were never put upon that 
ground in my hearing, because, as was well known, it would be a very unpleasant thing 
to me. 

Q. Were they not prompted, to a considerable extent, by political feeling.—A. When I 
first heard the rumor I thought so, but I changed my mind upon the subject. 

Q. You do not think, then, that it grew in any way out of the state of the country or of 
parties.—A. No; I do not. 

By Judge Busteed : 

Q. Are you in the habit of reading the Mobile Register.—A. No: I am not. 

Q. You regard it as an organ of public sentiment in the southern district of the State.— 
A. I do not know whether it is or not, for I do not read it. 

Q. Do you know whether it is or not an organ of public sentiment in the southern district 
of the State.—A. No, I do not, for I never read it; I have never read a copy of it since the 
war. 

Q. Do you read the Montgomery Mail.—A. No. 

Q. Do you never read it.—A. Seldom ; I perhaps sometimes look at it, when my attention 
is called to articles in it personal to myself. 

Q. What has changed your opinion in relation to these charges of corruption against Judge 
Busteed having grown out of political feeling.—A. Because I became satisfied that it is not so. 

Q. It was your belief, then, of these rumors.—A. Yes ; I became satisfied that they were 
true. 

Q. Is there anything else which influenced you to change your opinion.—A. There is 
nothing else. 

By Mr. Semple : 

Q. You say you attended a meeting of the bar in Montgomery in May, 1867 ; do you mean 
in the month of May or at the May term of the court.—A. I think it was during the May 
term of the court. 


185 


Q. That term commences on the fourth Monday in May, does it not.'—A. I do not remember. 

Q. Do you remember whether the meeting of the bar which you attended was held after 
you had been in Judge Busteed’s court and witnessed the proceedings to which you have 
referred.—A. I think it was. 

Q. Do you know how often Judge Busteed has ever been into northern Alabama—how 
often he has held his courts there.—A. I do not know. 

Q. Do you know whether he has been much in northern Alabama.—A. I understand he 
has not held his courts regularly there, but I do not know of my own knowledge. 

Q. When did you first go to Montgomery to stay any length of time.—A. I think in April, 
1867. 

Q. When you were appointed under the registration acts, as chief of registration.—A. Yes, 
sir; it was at that time. 

Q. You were asked by the committee whether you knew any witnesses by whom any 
important fact may be proved in reference to this matter; do you know Colonel Jennings.— 
A. Yes, sir, I do. 

Q. Where does he reside.—A. I think he lives in Laurens county, and in the town of 
Courtland. 

Q. What is his name; is it E. Jennings.—A. I think it is ; he is a member of the legis¬ 
lature from Laurens county, and was a colonel in the federal army. 

Q. You said you knew of no witnesses whose testimony would be specific proof as to the 
corruptness of Judge Busteed.—A. I know witnesses—several of them—who will testify that 
General Spencer told them, in substance, what he told me. 

Q. Is General Jennings one of them.—A. Yes, he is. 

By Judge Busteed: 

Q. General Jennings knows nothing further upon the subject.—A. Not that I know of. 

Washington, January 21, 1889. 

Frank Bugbee sworn and examined. 

By Mr. Semple : 

Question. State to the committee whether you are district attorney of the United States 
for the middle district of Alabama.—Answer. I am. 

Q. When were you appointed.—A. In April, 1867, I believe. 

Q. Did you receive any notice of an application to the court for an order of distribution 
of the money collected from Josiah Morris, under a judgment of the United States against 
Josiah Morris and J. F. Johnson.—A. No, sir; I received no notice of it. I was told of it 
by Judge Chilton after the order had been made. 

Q. Did you ever authorize any person to represent the United States, or to represent you 
for the United States, on such a motion.—A. No, sir. 

Q. Do you know anything of a case against 239 bags of cotton having been dismissed 
from the docket in Montgomery, in the middle district, and having been reinstated on the 
docket at a subsequent term.—A. I know very little about it. There was a case against a 
quantity of cotton of the Planters’ Manufacturing Company, which, it appears from the 
docket, had been dismissed as to a part of the cotton, and which cotton was said to have 
been seized in Mobile. 600 bales had been libelled in the middle district before I had any 
connection with the case, and 239 bales of it, which were said to have been seized in Mobile, 
had been dismissed. In the May term of 1867 these 239 bales were restored to the case in 
the middle district, in Montgomery. 

Q. On whose motion was that done.—A. Mr. J. Q. Smith made the motion. 

By Mr. Smith : 

Q. Is the case still pending.—A. It is. There were no cases of that kind tried at the 
May term of 1868. There were motions made to prepare the cases for trial, for the judge 
gave notice at the opening of the court that he would not try any of this class of cases. 

By Mr. Churchill : 

Q. The libel was filed in the middle district.—A. Yes, sir. This cotton had been pre¬ 
viously seized and stipulated for. The stipulators removed it to Mobile, where it was again 
seized, I have been told. , 

Q. Then it was removed from the court by stipulation.—A. Yes. 

Q. And the cotton was afterwards seized again on an order made on a motion before the 
court in the middle district.—A. No, sir. 

Q. Where was the motion made—at Mobile.—A. I presume so. 

By Judge Busteed : 

Q. When you entered on the discharge of the duties of district attorney, having taken 
the oath of office and qualified, did not James Q. Smith, by your consent, in open court, 
take charge of the cases of libels of information.—A. Yes, sir. The court came on imme¬ 
diately after I entered on the office. A great many confiscation cases were on the docket 
which I knew nothing about. My recollection is that Mr. Smith offered to assist me. 

Q. The fact is that he did so.—A. Yes. 


186 


Q. James Q. Smith went on with the prosecution of those cases as though he had been 
district attorney, under your sanction.—A. Yes. 

Q. Your own relations with Mr. Smith are those of kindness and pleasantness, are they 
not, and always have been.—A. Yes, sir. 

Q. After your incumbency of the office, while you were yet fresh in the office, you were 
in the habit o'f consulting with Mr. Smith as to suits and how they should be prosecuted.— 
A. Yes, sir. 

Q. Do you know anything in the official conduct of J. Q. Smith which ought to have a 
tendency to lessen him in your estimation.—A. Nothing of my personal knowledge. 

Q. Did you ever make complaint to Mr. Smith of his appearance on this motion of dis¬ 
tribution.—A. I never said a word to him on the subject. 

Q. Did you ever make any complaint to Judge Busteed about it.—A. Never. 

Q. Have you any doubt that, to the best ability of Mr. Smith, he represented the interests 
of the United States on that motion as he did in others.—A. I do not know anything about 
it; I know the facts that the decree or judgment had been rendered in 1866, and that, after¬ 
wards, the money was paid over to the marshal, Mr. Hardy. I met Mr. Hardy and inquired 
of him what he had done with the money, and he told me he had deposited it in the First 
National Bank at Selma. That is all I know about the case. 

By Mr. Churchill : 

Q. At the time the motion was made for the order of distribution did Judge Busteed have 
reason to suppose, from what had taken place in court, that Mr. Smith was acting with 
your assent.—A. It is impossible for me to say. 

Q. Did he have a right to suppose that Mr. Smith was acting with your assent.—A. Judge 
Busteed saw Mr. Smith taking the lead in all these confiscation cases in court, all that were 
on the docket at the time I was appointed district attorney. I do not think he took the 
management of any other class of cases except the confiscation cases. Perhaps I may be 
wrong in that. 

By Mr. Semple : 

Q. If it were shown to you that Mr. Smith did appear and represent you on that motion 
without consulting you, he being at the time retained for the informer, who claimed one-half 
of the fund, would that act have lessened him in your estimation.—A. After the recovery of 
the judgment, of course the informer, on the division of the money, became antagonistic to 
the United States. There were two cases, that of the United States and that of the informer, 
and I should have thought it improper for the attorney of the informer to have had the 
management of the case in the absence of the United States. 

Q. Were any papers turned over to you by Mr. Smith, your predecessor, showing that 
there had been any informer in this case.—A. No, sir. 

Q. Did you, when Mr. Smith appeared in those confiscation cases, appear with him, or 
did hea ppear alone.—A. I think I was present all the time; I may possibly have been out some 
little, but my impression is that I was present all the time. That is, in the court at Mont¬ 
gomery. 

By Mr. Woodbridge : 

Q. Was there any officious interference on the part of Mr. Smith with those matters after 
you became district attorney.—A. No, sir; I think not. 

Q. Did he take any kind of action in the premises that you objected to in any way.—A. 
No, sir. 

After the examination had closed and the witness had retired, he returned to the com¬ 
mittee room, and asked to correct a statement he had made. He said: 

I was asked if I had approved of everything that Mr. Smith did in court. There was a 
case of information against three or four thousand acres of what were known as the Briar- 
field lands, which had been sold by General Swayne, the assistant commissioner, to Mr. 
Lyons and others, and had been confirmed to Mr. Lyons by an act of Congress ; I received 
a letter from the attorney general, directing me to have the suit continued or dismissed, so 
that Mr. Lyons, if he desired, could contest it with the other claimants. Mr. Smith was 
anxious to try it. I took the lead myself, and moved a continuance. That being disapproved 
I moved a dismissal, which was granted ; but the dismissal was afterwards set aside by the 
judge and the case continued. That is a case in which we did not exactly agree. 

Washington, D. C., Januury 21, 1869. 

William D. Dunn sworn and examined. 

By Mr. Smith : 

Question. How long have you lived in Alabama.—Answer. Since December, 1829. 

Q. What has been your business.—A. I practiced law for a number of years. I have 
retired from the bar. 

Q. What, if any, associations have you kept up with members of the bar and with the 
courts.—A. My associations have been kept up with the bar from that day to this, to a very 
great extent. "My associations with the courts have been much less than with the bar. My 
personal friends and associates are very much among the members of the bar. 

Q. Were you in court when Mr. Hamilton made a motion to set aside the sale of cotton 


187 


seized from the wreck of the Natchez.—A. I was in court during a large part of the day 
when that discussion was going on. I do not think I was in court when the motion was 
originally made ; or probably I was not in court at the outset of the discussion on the day 
to which I have reference. 

Q. Did you hear the examination of the witnesses.—A. I remember the examination of 
Mr. Secor with a good deal of distinctness. I cannot recall the examination of any other 
witness. 

Q. Give to the committee as distinct an idea as you can of what transpired, and of the 
manner of the judge.—A. The manner of the judge, both towards the counsel and towards 
witness, was, in my opinion—in the opinion which I then formed, and which I have enter¬ 
tained ever since—very overbearing, dictatorial, and insulting. 

Q. Go on, and tell what took place.—A. I cannot recall the language ; it was more the 
manner than the language used on the occasion that made the impression on me. I remained 
in court a considerable part of the day. I know I was there a considerable time while Mr. 
Secor was under examination. The judge invariably objected to almost every question, if 
not every question, which Mr. Hamilton asked. It had really escaped me that there was 
any counsel representing the other side of the question until I met Mr. Hamilton subse¬ 
quently at West Point, on my way here, when he called my attention to the fact that Mr. 
Alexander McKinstry was representing the other side. 

Q. What was the manner in which Judge Busteed treated the witness, and with what con¬ 
tinuity was the witness permitted to pursue his narrative.—A. When the witness attempted 
to respond to the inquiry made, in*a very large majority of instances the judge interposed 
and said, “ Don’t answer, don’t answer.” 

Q. Were those inquiries pertinent to the case.—A. I thought so. I thought they were 
eminently pertinent. 

Q. Is Mr. Hamilton a man who understands conducting investigations.—A. As much so 
as any man I know. 

By Mr. Churchill : 

Q. What was his manner to the court.—A. Forbearing in the most eminent degree. 

Q. How long did the examination of these witnesses last, so far as you know.—A. I was 
in court, I think, several hours ; I do not think I was in court till the conclusion of the matter. 

By Mr. Smith : 

Q. What was the conduct of the judge whenever the action of Hardy or Jacob Wilson was 
called in question on that occasion.—A. The judge made a considerable speech on that occa¬ 
sion as to the grossness of the assault on the integrity of the marshal of the United States. 
I do not recollect as to Jacob Wilson. It came out in the course of the examination that 
Jacob Wilson conducted the sale of the cotton. So far as Hardy was concerned I can only 
state that the court intimated that it was a very serious matter to implicate an official hold¬ 
ing such a high position. 

Q. What was the manner of the witness Secor.—A. Secor seemed very anxious, indeed, 
to answer the inquiries put to him by Mr. Hamilton. 

By Mr. Churchill : 

Q. What effect did the manner of the court produce on the witness.—A. It seemed to 
embarrass him. 

Q. If there is any further fact with reference to the effect produced upon the witness by 
the court, please to state it.—A. I do not know that I can state any further fact than that 
the witness was embarrassed by the interposition of the judge, and that he seemed ready and 
willing to proceed with the narrative, in answer to inquiries. 

By Mr. Smith : 

Q. I want to know whether what the witness knew was ever permitted to come out— 
whether he had an opportunity of telling what he knew.—A. Clearly, he had not. 

By Mr. Woodrridge: 

Q. By reason of the interference of the court.—A. By reason of the interference of the 
court he clearly had not any opportunity of telling what he had purported to know. 

By Mr. Eldridge : 

Q. Was there anything in the conduct of the witness to the court which would justify the 
court in the interruption of the witness.—A. Nothing that presented itself to my observation. 

By Mr. Smith : 

Q. Were you present when Gustavus Horton was tried on an indictment for discriminating 
against Archie Johnson on account of his color.—A. I do not know that I was in court 
during the whole trial; I was there for some time. 

Q. Give to the committee, as near as you can, all that transpired on the trial of Gustavus 
Horton on that indictment.—A. I cannot recall the language; I can only recall impressions 
left on my mind by witnessing the exhibition which took place in the court. The manner of 
the judge on that occasion was overbearing toward the counsel for Mr. Horton, Mr. Charles 
Moulton. There was a constant interruption on the part of the court to suppress the inter¬ 
rogatories propounded by Mr. Moulton in behalf of Mr. Horton. 


188 


Q. What was the tendency of the interrogatories.—A. I cannot tell what the interroga¬ 
tories were. They were such interrogatories as counsel conducting the defence, under the 
state of facts existing, would present. I do not recollect what language was used, or exactly 
the character of the inquiries. I do recollect the character of some of them. Some of them 
were tending to show that this action on the part of Horton was only following the pre¬ 
cedents of preceding mayors. I remember that. That evidence was excluded. 

Q. What effect did the bearing of the judge have upon Moulton.—A. Well, sir, he wilted. 
That is about as expressive a phrase as I know of. It was about as complete a breaking 
down of counsel as any that I ever witnessed. 

By Mr. Churchill: 

Q. What was the manner of the counsel toward the court on that occasion.—A. It is diffi¬ 
cult to conceive of anything more deferential than it was. 

Q. Was there anything in the conduct of counsel or of witnesses to occasion other than 
courteous treatment from the bench.—A. Nothing that I witnessed. 

By Mr. Eldridge: 

Q. Nor of the defendant.—A. The defendant was perfectly silent. The defendant did 
make a speech afterwards, when called upon by the judge; but that was at a subsequent 
period of the trial, after the conviction. 

Q. There was nothing in his conduct or bearing that should induce this conduct on the 
part of the judge.—A. Nothing in the world. 

By Mr. Smith : 

Q. Give some idea of the look and manner, &c., of the judge.—A. I cannot describe that 
exactly, except to say that it was overbearing aud dictatorial. 

Q. State who catechised the witnesses mainly in relation to the case.—A. Mr. Moulton 
was not allowed to conduct the examination of his witnesses hardly at all. I do not recollect 
the witness for the plosecution. The conduct of the court toward the witnesses for the pro¬ 
secution has no resting place in my memory at all. 

By Mr. Eldridge : 

Q. Who was trying the case on the part of the government.—A. I think it was Mr. George 
N. Stewart. 

Q. Was he district attorney at that time.—A. No, sir ; Mr. Martin was the district attorney. 

By Mr. Smith : 

Q. State whether you yourself made any remonstrance to the judge in relation to the sen¬ 
tence that he should pronounce on Mr. Horton, and what the judge replied, if anything.— 
A. The judge sent for me to his room after the conviction. There were some gentlemen 
in his room when I got there. Whether any conversation occurred between the judge and 
myself in the presence of those gentlemen I do not recollect. The purport of the judge’s inquiry 
of me was what I thought should be done with Horton. I cannot repeat the language in 
reply, but I can state the impression I endeavored to convey. I said to him, in effect, that 
it was a small affair; that the thing had been grossly magnified, in my judgment; that Hor¬ 
ton was an old man and with small means, and that I thought a very small fine would be 
sufficient punishment. I do not recollect any response which the judge made at that time. 
He said he had an engagement to dine. The other gentlemen had left the room, and we 
walked out and walked down the stairs. As we were on the stairway he repeated the inquiry 
to me what I thought should be the sentence of Horton, and I repeated what I had said 
before. The judge replied in a manner which made a distinct impression on my mind. “By 
God,” he said, “you may eat me if I do not do more than that.” 

Q. Do you know whether his feeling was one of animosity towards Horton.—A. No; I 
never had any conversation with the judge about Horton except on that occasion. 

Q. Do you know whether other gentlemen remonstrated with him against doing what he 
was disposed to do in the way of sentence.—A. Not in my presence ; I have only heard of 
it from other gentlemen. 

By Mr. Eldridge : 

Q. Is that all that the judge said to you on that occasion.—A. Nothing further rests in 
my memory in connection with it. 

Q. He gave no reason for making use of such an expression.—A. None that I remember. 

By Mr. Smith : t 

Q. Do you know the lawyers of Mobile.—A. Very generally. 

Q. Do you know Mr. Rufus Andrews as a practitioner there. 

(Judge Busteed objected, and said that he admitted that Mr. Rufus Andrews had been for 
many years aud still was an intimate personal friend of his ; that he resided in Judge Bus- 
feed’s house at Mobile in 1865-’6G ; that he went to Alabama with Judge Busteed and his 
family in J865, when he first went there to hold court; that Mr. Andrews went to Mobile a 
stranger, and that the intimacy and friendship of Judge Busteed and Mr. Andrews contin¬ 
ued to this day. 

The question was not admitted.) 


180 


Q. Did you hear Judge Busteed oil the bench, when the bar were attempting to get him 
to make some rules in relation to the disposition of business, make any statement in reference 
to his course of conduct when he was at the New York bar? If so, what did he say.—A. 

I was present in court on one occasion when the lawyers were endeavoring to settle the 
practice as to continuances, and as to laying cases over for trial. Among other things it was 
remarked that the indisposition of counsel would be good cause for not proceeding with a 
trial, and for continuing or postponing the case from day to day. That was the idea. They 
were trying to settle some rules of court. The judge was on the bench. In response to the 
suggestion as to the indisposition of couusel, the judge replied very definitely that that would 
not do; that it was known in New York, when he was at the bar, that no man could get sick 
faster or sicker than he could. That was in response to the proposition as to the indisposi¬ 
tion of counsel being received as an excuse for not proceeding with a trial. 

Q. Give to the committee, as nearly as you can, the manner of the judge in taking up 
and disposing of the business of the court.—A. I should think that the practicing lawyers 
could do that better than myself. 

Q. I want you to state how it was, as nearly as you can.—A. There was no such thing 
as arriving at a conclusion when your case would be tried ; so it seemed to me. Cases were 
called, and if the witnesses were not immediately in the court, the cases were forced on. 
The judge seemed to me irregular in coming into the court, and in adjourning court. I was 
very often in court myself. There seemed to be no reliability as to the time when a case 
would be disposed of. He was irregular in this respect, that the court would be adjourned 
to meet, for instance, to-morrow morning at 12 o’clock. At 12 o’clock a man by the name 
of Wilson—I think on more than one occasion, but I distinctly recollect one occasion—would 
come in and say, “The judge will not be in court to-day.” He would probably say that 
the judge was unwell. 

By Mr. Churchill : 

Q. Was that the reason given on that one occasion, that the judge was not well.—A. Yes, 
I think it was. 

Q. And that is the only occasion of which you have any knowledge personally.—A. That 
is the only occasion I recollect of Wilson’s coming in ; I do not think you could rely cer¬ 
tainly upon the court being held and business being proceeded with. 

By Mr. Woodward : 

Q. What was probably the average number of cases on the docket.—A. I never examined 
the docket and cannot tell you ; I think there was considerable business on it. 

By Mr. Eldridge : 

Q. Do you know whether the judge was in fact sick at that time when Wilson announced 
that he would not be in court that day.—A. I cannot say. 

By Mr. Smith: 

’ Q. Do you know anything about an adjournment to 12 o’clock one day, and the judge 
going off to New Orleans.—A. Not of my personal knowledge; I was a litigant in court 
and that was one reason why the thing made such a decided impression on my mind ; 
it was necessary for me to be there all the time, as I was president of a railroad company 
which had a case in court, and we could not tell when the case would be disposed of, and 
the judge would allow no agreement to be made as to cases being taken up. 

By Mr. Eldridge : 

Q. Were not the cases tried in their order on the calendar.—A. No ; I think not. 

Q. Were not the cases called in their order on the calendar, and some disposition made of 
them in their order.—A I think the cases probably were called in their order, but they were 
not tried in their order, nor was the convenience of counsel consulted as to the disposition of 
the business of the court. 

Q. Were they not either tried, in the order in which they were called, or some temporary 
disposition made of those that were not tried.—A. Yes, sir ; but that was without reference 
to the administration of the business of the court; the counsel were frequently not con¬ 
sulted as to whether the business should proceed or not. For instance, if a case was called, 
and a gentleman present would say that the opposing counsel would be in court in a few 
minutes, the judge would not allow the case to wait; the case must be either dismissed, or 
continued, or disposed of. 

Q. Did you know of his passing any cases without either counsel being there, and taking* 
up other cases out of their order.—A. No, sir. 

By Mr. Churchill: 

Q. When cases were called, and the counsel on both sides answered “ready,” were they 
not always tried in their order.—A. Oh, yes ; I think they were tried in tbeir order then. 

By Mr. Eldridge: 

Q. In that case you spoke of as not being tried—the case which you said kept you in 
court so much—was the fact of its not being tried any fault of the judge.—A. No, sir. 

Q. There was no fault of the judge in that case.—A. No, sir, none at all. 


190 


By Mr. Smith : 

Q. Did you hear Mr. Andrews make any argument or take any part in the conduct of 
cases in Judge Busteed’s court.—A. I heard Mr. Andrews make one brief argument in 
court, not an extended one. It was in a criminal case. That was about the first time that 
I ever saw Mr. Andrews. It was an argument addressed to the court. I heard Mr. An¬ 
drews respond to some inquiries on the part of the court on subsequent days ; and I think I 
have heard Andrews make a motion as to the disposition of a case when called. I never saw 
Mr. Andrews engaged in the trial of any other case, either before a court or jury, except this 
criminal case. 

By Mr. Eldridge : 

Q. Do you know of his being employed in cases where he took no part in the trial.—A. 
Not of my personal knowledge. 

By Mr. Smith : 

Q. Do you know who acts as assignee in all cases of bankruptcy in Mobile.—A. I under¬ 
stand from the newspapers, and from hearing counsel speak, that it is a man by the name 
of Bailey. 

Q. You know of that mau Bailey, do you not.—A. No, sir. I never heard anybody speak 
of Bailey but you in my life ; I never heard of him until I saw his name in the newspapers. 

By Mr. Eldridge : 

Q. How long have you resided in Mobile.—A. I went there in December, 1829. 

Q. You have been in active business there.—A. I was for a number of years at the bar; 
but I broke down in point of health, and retired from the bar. I have been since then in 
various positions, sometimes at the head of a railroad, and now at the head of an insurance 
company; and, more or less, my business with the people of Mobile and my associations 
with the bar have been kept up. 

By Mr. Smith : 

Q. Do you know Jacob Wilson.—A. Only as attending on the court; I never spoke to 
him. 

Q. Did you see Jacob Wilson with pistols upon him.—A. No, sir; if he had pistols they 
were concealed. 

By Mr. Eldridge : 

Q. Where did you see him.—A. In the streets and in the court. 

Q. Was he in the judge’s room.—A. No, sir; I never saw him there. I never was in the 
judge’s room but twice. 

Q. Did you ever know of his attending the judge as a body servant.—A. Not of my per¬ 
sonal knowledge. 

By Mr. Smith ; 

Q. Do you know anything of suitors frequenting the judge’s chambers.—A. No, sir. 

By Mr. Eldridge : 

Q. Do you, of your own knowledge, know of any corrupt act of the judge, or any fact 
tending to show' that he was corrupt and acted corruptly as a judge.—A. I know that 
he sustained the sale of the 454 bales of cotton, and that Mr. Hamilton’s motion was ignored. 

I had an interest in the cotton; I do not know anything except what the records of the court 
will show. 

Q. Do you know of any act of his, or of any fact that will tend to show that Judge Busteed 
acted in his official character corruptly, or that he received bribes, or that he shared in the 
costs of those suits; any facts wiiich you have not yet testified to.—A. No, sir; 1 do not. 

I do not know of any other facts than those I have testified to. 

By Judge Busteed : 

Q. You are the intimate friend of Robert H. Smith.—A. Yes, sir; and have been for 
many years. 

Q. And you sympathize with him in this effort against me.—A. Very decidedly, I think. 

Q. And have expressed your hope frequently that it would succeed.—A. Very often. 

Q Who introduced you to me; do you know.—A. Yes; I recollect the occurrence per¬ 
fectly well. 

• Q. Who was it.—A. I do not think anybody did; but I will detail the facts. 

Q. I do not want them. When did you cease the practice of the profession of law, for a 
livelihood.—A. I have not practiced law for the last 18 years, for a livelihood ; probably 
tor the last years; but I remember having practiced it for a number of years since that, 
more or less. I ceased to be a general practitioner more than 20 years ago 

Q. Can you recollect a single question that was asked Secor in the case, when you were 
in the court.—A. \es; I think I can. I can recollect the purport of them. 

Q. I mean the question itself.—A. No ; 1 cannot recollect the language of one question 
asked. 

Q. Can you recollect a single answer.—A. No ; I cannot recollect the language of a single 
answer. 


191 

Q. State how long the examination of Secor took.—A. It took considerable time ; 1 cannot 
be definite as to the time. 

Q. About how long.—A. I cannot designate how long; it is a considerable while ago. I 
should think it occupied an hour or two; probably more. 

Q Can you state a single thing which he offered to testify to, and which was ruled out.— 
A. Yes, I cau. 

Q. State it.—A. As to the manner in which the sale was conducted. 

Q. What did he say.—A. He said the cotton was all put so closely together that it was 
impossible for it to be examined. He said—I do not pretend to repeat his language—that 
when the bid was given at which the cotton was knocked off, it was knocked off instanta¬ 
neously. 

Q. Do you recollect anything else that he said in that examination of two hours.—A. I 
cannot recollect his language. 

Q. This occurred April 19, 1866, did it not.—A. It was in the spring of I86G. 

Q. Did you, at that time, make any memorandum of the occurrence.—A. No, I did not. 

Q. And you rely solely on your memory for it now.—A. To a very great extent. I have 
seen a memorandum made by Mr. Hamilton. 

Q. When did you see it last.—A. Very recently. 

Q. When.—A. Mr. Peter Hamilton wrote out his memorandum for me, after he came to 
Washington and sent it to me, which refreshed my recollection; to a very limited extent, 
however. 

Q. Do you recollect the witness, Secor, was asked, “ Have you any connection with the 
cotton libelled in this court, growing out of the disaster to the Natchez.”—A. No, sir. 

Q. And that he answered, “ I am an agent of the consignee of the vessel.”—A. I remem¬ 
ber that answer. 

Q. Do you recollect his being asked, “ Did you examine all the cotton libelled in this 
court.”—A. I remember some interrogatory to that purpose; but I do not recollect the 
response. 

Q. Do you recollect his being asked, “ Did you take the marks of the cotton.”—No, I do 
not recollect that. 

Q. Do you recollect his being asked, “Did you know of the marshal having taken into 
his possession any one of those bales for sale ?” and do you know that he gave an answer 
to all these questions.—A. I cannot recollect the language of the questions or of the 
responses. I remember that there was considerable inquiry on your part, about the seizing 
of the cotton, and about his connection with it. 

Q. Do you remember his being asked, “Why did you not take the marks and make the 
examination.—A. No, sir. 

Q. Do you remember that that question was disallowed.—A. No, sir. 

Q. And that an objection was noted.—A. No, sir. 

Q. Do you recollect that the judge stated to Mr. Hamilton that all the grouuds on which 
the motion rested must now be distinctly stated.—A. No. I remember some discussion 
between you and Mr. Hamilton. 

Q. Do you recollect that Mr. Hamilton said, in reply, that he would not state the other 
grounds, or give causes to be exhibited, either in writiug or orally.—A. No, I do not 
recollect. 

Q. Do you remember that the judge gave Mr. Hamilton notice that he would then confine 
him in his testimony to the cases stated in notice marked “A.”—A. No, I cannot recollect 
that. 

Q. Do you recollect the witness being asked how long an interval occurred between the 
suppression of the cotton and the sale by the marshal, and that he answered that question.— 
A. No ; I have nothing but a general recollection of the occurrence. 

Q. Do you recollect his being asked, “Was the cotton disposed so that it could be ex¬ 
amined by persons wishing to buy it?”—A. Yes. 

Q. What was his answer.—A. That it was not so disposed that it could be examined. 

Q. Do you recollect that to be his answer.—A. I think that that was his answer. 

Q. Do you recollect that Mr. Secor’s answer to that last question was in these two words, 
“Not satisfactorily.”—A. No, I do not recollect. 

Q. State whether Mr. Secor was asked to state how the cotton was arranged, and what 
his answer was to that question.—A. I think I can state that. 

Q. What was his answer.—A. That the cotton was put up close together and set on end— 
the whole 454 bales. That is the impression that rests on my mind. It may be that I 
heard another witness besides Secor’; and whether Secor stated that fact or the other witness 
stated it my memory is not clear. But that fact came out. 

Q. Do you recollect that Secor was asked, “From their position was there an opportunity 
to inspect the bales in those several lots?” and do you recollect his answer.—A. I think I 
do recollect his being asked that. 

Q. What was his answer.—A. I do not recollect what his answer was further than I have 
said. 

Q. Will you say that his answer was, “Not as to extent of damage.”—A. I can only say 
that I think his answer was to that effect, but I cannot recollect the language. 


192 


Q. Do you recollect whether he was asked, “ How many bales were put up at once?”— 
I cannot recollect the question distinctly, but I have a definite recollection of it transpiring 
in the course of the trial. I cannot locate it on Mr. Secor in definite language. 

Q. Do you recollect the judge reminding Mr. Hamilton more than once that he must not 
lead his witness.—A. I think that wag the fact, but there was so much interruption of Mr. 
Hamilton that I cannot speak of the reprimanding on that particular point any more than 
on others. 

Q. Do you recollect that the judge used this language: “The court reminds counsel 
against violating the rule that he must not lead his own witness; and if it is continued the 
court will take the examination of the witness into his own hands.”—A. No, I do not. 

Q. Were you in court when Mr. Hamilton refused to give the judge a paper.—A. I do 
not think I was. 

Q. Who was the counsel for the marshal on this motion.—A. Alexander McKinstry, I 
think. 

Q. How much of your time did you spend in court during the Horton trial.—A. I think 
I was there most of the day. 

Q. What day.—A. The day of the trial. 

Q. Did the trial occupy but one day.—A. You were several days before you got through 
with it. I think he was tried one day, and that a day intervened before sentence. Whether 
the verdict was returned the day the case went to the jury, or the next morning, I do not 
recollect, but I think a whole day intervened between the return of the verdict and the 
announcement of the sentence. 

Q. You stated in your direct examination that Judge Busteed’s manner to Mr. Moulton 
was very overbearing, and that there was a constant suppression of Moulton’s interrogatories 
by the court. Tell the committee a single interrogatory of Mr Moulton’s that was suppressed 
by the court.—A. I cannot recollect any question in definite language which Mr. Moulton 
propounded to the witness. 

Q. Give the substance of any interrogatory addressed by Mr. Moulton to the witness, and 
which was suppressed by the court.—A. I do not know that I can do that. 

Q. Did you ever talk with Mr. Moulton on that subject.—A. Never. 

Q. He never complained to you that he was badly treated in that trial.—A. Never. 

Q. You say that Judge Busteed sent for you to go to his room the day Horton was tried.— 
A. Yes. 

Q. Whom did he send for you.—A. You either sent or came down to the bar and invited me. 

Q. Can you state which it was —A. 1 cannot. 

Q. What bar was it.—A. I mean the area in front of the judge’s bench where the lawyers 
sit. 

Q. Who was in the judge’s room while you were there on that occasion.—A. There was 
more than one person. I cannot recollect who the persons were. 

Q. You were of the opinion that my conduct in that case had been very outrageous before 
you came into my room.—A. Yes. I thought that Mr. Horton had not had a fair trial. 

A. And that my conduct as a judge was wicked.—A. I thought it highly oppressive. 

Q. That is wicked, is it not, in your judgment as a lawyer.—A. Yes. 

Q. Do you recollect whether Mr. George N. Stewart, the lawyer who conducted the trial 
for the people, was in the room on that occasion.—A. He was. 

Q. Do you recollect whether Mr. Joseph E. Murrill was there.—A. I cannot locate Mr. 
Murrill as being there. 

Q. Do you recollect Mr. D. C. Anderson as being there on that occasion.—A. I do not. 

Q. Whatever conversation occurred in that room occurred in the presence of those persons 
and yourself.—A. No; not the whole of it. We were left aloue. The other gentlemen who 
were in the room left it, and you and myself left and went through the court-room by our¬ 
selves. 

Q. How long did you remain with me alone, after the other gentlemen went away.—A. 
A very short time, not exceeding five minutes at the outside. I do not think it was thjit long. 

Q. Did anything occur in the room previous to our leaving it that induced you to change 
your estimate of my conduct on that day.—A. No; nothing. 

Q. Do you not recollect that we drank a glass of wine together on that occasion.—A. I think 
so. 

Q. And that we all had a friendly social glass of wine in my room.—A. Yes. 

Q. Where do you say the conversation occurred between you and me in which I said, 
“By God, you may eat me if I do not do more than that.”—A. That occurred on the stair 
steps leading from the third to the second story. 

Q. Front or rear.—A. In the front. 

Q. Was there any person present or within hearing.—A. There was no person present or 
within hearing. 

Q. And you say that I used that profanity, do you.—A. I do. 

Q. And that you recollect it.—A. That it made an abiding place on my memory which I 
will never forget. 

Q. Do you know whether the judge was or was not in the habit of using profane lan¬ 
guage.—A. I do not. 


193 

« 

Q. Do you know about his actual habit in that respect being notorious or otherwise.—A. 

I do not. 

Q. Did you make any minute or memorandum of that conversation.—A. I did not. 

Q. How often have you repeated it before to-day.—A. I cannot tell. 

Q. A great many times.—A. Yes ; many times. 

Q. Do you not know that there is a weakness of the human mind which sometimes adopts 
as a fact something which it has frequently repeated to itself and to others.—A. Oh, yes. 

Q. Have you contributed any money, or promised to contribute any, towards the proposed 
impeachment of Judge Busteed.—A. I have not. 

Q. Do you expect to pay anything towards it.—A. I will certainly pay if called upon— 
if there is anything like a contribution asked from the community; but I have never been 
asked. 

Q. You are very anxious to get Judge Busteed off the bench, are you not.—A. I am. 

Q. Has your auxiety reference to anything that may come in the future about railroads.— 

A. Nothing. There is a railroad case pending there. My connection with that railroad has 
ceased, so far as being the president of it is concerned; but the judgment of Judge Busteed 
in that case would not be definite, I take it. 

Q. You were engaged in the rebellion, I believe.—A. No, sir. I never bore arms, but I 
was a sympathizer with it after the issue was made. 

Q. You got a pardon from the President.—A. Yhs. 

By Mr. Smith : 

Q. You said, in reply to a question by Judge Busteed, that you were friendly to me, and 
had expressed the hope that I would succeed. On what was that hope predicated—your 
friendship for me, or something else.—A. My friendship for you has little or no agency in 
the hope which 1 have as to the success of the prosecution. 

Q. On what was your hope based.—A. On the demands of the public good. 

By Mr. Eldridge : 

Q. Have you any such feeling in this matter that your testimony could be influenced by 
it.—A. Not the least. I am a man of very defined characteristics, and one who is apt to 
express himself in very definite language. But I feel that I am incapable of being influenced 
in the slightest degree in the testimony I give here by an improper motive. 

Q. You do not hope to have Judge Busteed removed unless there should be developed in 
this examination evidence to justify it.—A. I would deprecate it, as I would a blot on the 
honor of the country, to remove any judicial officer unless the facts sustain the charges 
against him. 

By Mr. Smith : 

Q. State whether Judge Busteed made any expression or demonstration as to Horton’s 
conviction.—A. I answer that in the affirmative. 

Q. What was the expression or demonstration.—A. There was an ebullition of fine spirits, 
decided gratification, and remarks of a congratulatory character which I cannot repeat. 

By Mr. Eldridge: 

Q. Was that before or after the wine was taken.—A. It was concurrently, I suppose, for 
I was a very short time in the room. 

By Mr. Churchill : 

Q. Was it immediately after the verdict.—A. I cannot say ; I think it was. 

Q. Were you in court when the verdict was given.—A. I think I was; but I am not so 
clear on that subject. This interview was, I think, immediately after the return of the ver¬ 
dict and before the sentence. I cannot repeat the language, but it was simply an expression 
of gratification at the result of the trial. 

By Mr. Eldridge: 

Q. How did Judge Busteed manifest this ebullition of satisfaction and joy.—A. By the 
remarks which he made and the good humor he manifested. 

Q. What did he say.—A. I cannot repeat his language. 

Q. Tell us what lie said, in substance.—A. The idea was that a great success had been 
achieved. 

Q. Did he express himself in words to that effect.—A. I think he did. 

By Mr. Churchill: 

Q. By whom had this success been achieved.—A. By the prosecution. 

Q. Did he convey to your mind that he felt it was a personal success on his part.—A. 
Exactly. 

By Mr. Eldridge : 

Q. Can you tell us anything that he said from which you drew that conclusion—that he 
had a personal success.—A. My examination-in-chief will show that, I think. He conferred 
with me about the sentence which should be pronounced upon Horton, and in terms which 
indicated that he supposed I was sympathizing with the prosecution. I was not sympa¬ 
thizing with the prosecution against Horton. I felt gieat sympathy tor Horton. iSo lemon- 

13 B 


194 


strance on my part would have been necessary but for the manifestation of feeling which was 
made on the part of the judge, it seems to me. 

Q. Do you recollect what the judge was doing when you went into his room.—A. I remem¬ 
ber that it was a hilarious meeting. There was a good deal of hilarity. Mr. Stewart, who 
conducted the prosecution, was present, and was evidently very much gratified himself at 
the success of the prosecution. 

Q. Had wine been drank before you came in.—A. I cannot say. There was not time to 
have drank any wine to have produced any effect on them. 

Q. Had the judge just left the bench.—A. He had just left it. 

Q. Did you see any indications of their having drank wine when you first got to the judge’s 
room.—A. I think there were probably glasses and a bottle on the sideboard. 

Q. What was the wine that was drank, Champagne or still wine.—A. 1 do not recollect. 

By Judge Busteed : 

Q. Do you know what the sentence of the court on Horton was.—A. I do. 

Q. What was it.—A. $250 fine. 

Q. Do you know the extent of sentence which the judge could have imposed.—A. I believe 
Horton could have been sent to the penitentiary. 

Q. For two years.—A. I do not know; I never studied the act of Congress on the subject. 

Washington, D. C., January 21, 1869. 

John C. Keefer sworn and examined : 

By Mr. Semple : 

Q. State to the committee whether anything ever passed between you and General Spencer, 
at Eutaw, about making a present to Judge Busteed; if so, state when it was, where it was- 
in the town, who were present, and what it was that passed between you.—A. I do not 
exactly recollect the date. I think it was in July, 1867, that I made a speech in the town 
of Eutaw and organized a Union League there, in connection with General Spencer. We 
roomed together in the hotel and spent a great part of the night in conversation, in bed, 
nobody else being present. In that conversation I told him that I thought we were going to 
have trouble about our bankruptcy business, from the fact that the judge was away from the 
State a good part of the time, and that no satisfactory rules had been promulgated, and from 
the general character of the judge’s health, which was at that time weak. We had a good 
deal of conversation about it, which I do not altogether remember; but General Spencer told 
me that Judge Busteed wanted money, and that we would have to make him, each of us, a 
present, to get along comfortably with him; that he meant to do so, and thought it would 
be good policy for me to agree to do so likewise. 

Q. Was that all that passed between you.—A. That is all that I remember of that conver¬ 
sation. 

Q. Were you register in bankruptcy at that time.—A. Yes. 

By Mr. Woodbridge: 

Q. Did you make a present to Judge Busteed.—A. I never did. 

Q. Did you ever say anything to him about making him a present.—A. No, sir. 

Q. Did you get along comfortably in your office.—A. No, sir. 

Q. What was the trouble.—A. The trouble was continuous, almost from the time of my 
appointment or nomination by the Chief Justice. I was met at the threshold with a demand 
to support Judge Busteed for the United States Senate as a condition for my confirmation. 

By Mr. Churchill: 

Q. From whom did that demand come.—A. From himself. I never would agree to do 
that, and I had trouble continuously, as I believe, in consequence of it. 

By Mr. Woodbridge: 

Q.. Where was this conversation with Judge Busteed, when he made your confirmation a 
condition of your supporting him for the United States Senate.—A. In the back room of the 
building occupied by J. Q. Smith, who was then United States marshal. 

Q. When was that.—A. To the best of my recollection, it was in May, 1867. 

Q. What time in May, as near as you can recollect.—A. I cannot give the date exactly. 

Q. As nearly as you can.—A. I think it was in the early part of May. 

Q. Who was present.—A. Nobody but Judge Busteed and myself. 

Q. Were you in a room by yourselves.—A. We were in a room by ourselves. 

Q. How did the conversation first arise.—A. He told me that he had received my appoint¬ 
ment from the Chief Justice as register in bankruptcy, and that he had not made up his mind 
to confirm the appointment. 

By Mr. Semple : 

Q. Do you recollect whether the court was then in session.-A. I think it was; I am not 
certain. 

By Mr. Woodbridge: 

Q. W T ho opened the conversation respecting your influence being used for Judge Busteed 
as United States senator.—A. He did himself. 


195 


Q. \\ hat did he say.—A. He said that a seat in the United States Senate was the darling 
object of his life’s ambition : that he was born in Ireland, and could not be President or Vice- 
President of the United States, but that he could get a seat in the United States Senate ; that 
he had satisfied his ambition as a lawyer and as a soldier, and now wanted to obtain the 
highest political preferment competent for him to attain, and he wanted me to help him get 
it. lie said that I had organized the colored people of the State, and was still eno-ao-ed^in 
doing it under the republican party, and that if I would exert that influence to obtain for him 
this object of bis ambition my confirmation as register would follow, and he would do all he 
could to help me along. 

Q. What reply did you make.—A. I told him in reply that I could not bind myself to do 
that; that T considered the success of the party of more importance than the elevation of any 
individual; that if he would take off his coat and go to work among the white men of the 
mountains, as I was working among the colored people in the low lauds, and would help me 
to organize the paity, there was nothing that he could demand which the party would not be 
willing to give him, but that I wanted him paid for services rendered. 

Q* What reply did he make.—A. He said that his probable competitor for the United 
States Senate would be General Swayne; I suggested in answer to that, that I did not see 
why both could not be elected. He said they would probably take a northern man and a 
native southerner, and in that case there would be a contest between General Swayne and 
himself; and then he wished to know how I would act, as between the two. I told him that 
if it came to that, my preferences would be for General Swayne, and I would not bind 
myself. „ 

Q. Did you support Judge Busteed for the Senate.—A. Never. 

Q. You were opposed to him.—A. Yes, sir. 

Q. At what time did you get your confirmation.—A. I do not know when I was confirmed, 
on record. We parted at that interview without a settlement of the matter; I saw him the 
next day or the day after, I am not sure which, but within 48 hours of that meeting, and 
after considerable talk, be told me he thought he would confirm my appointment; that, indeed, 
I might almost consider myself confirmed, and asked me if I would make Mr. Blake, his 
son-in-law, who was then clerk of the court, the assignee in bankruptcy, in that district, 
whenever I had the appointment; I told him I had no objection to doing that; that I liked 
Mr. Blake and thought him a good man. 

Q. At this interview did you have any further conversation with Judge Busteed respecting 
his being United States senator.—A. The conversation at the next interview, so far as it 
related to the senatorsliip, rather consisted in his abusing General Swayne to me. 

Q. When did you come into your position as register.—A. He told me, the afternoon of 
the same day on which this conversation occurred, that I should make a bond and send it 
down to Mobile, (he was about to go to Mobile,) and he would send me my commission. 

By Mr. Eldridge: 

Q. Do you know any fact, either from conversations which you have had with Judge 
Busteed, or from anything that you have seen in his conduct, which tends to show that he 
was a corrupt judge, or that he ever received bribes for any official act as judge.—A. Not 
directly. 

Q. Do you know any fact that tends to prove any such thing.—A. I know that he issued 
an order requiring the retention by the clerk of all the moneys paid as deposit money by 
bankrupts who filed petitions ; General Spencer told me that Judge Busteed told him that 
that order did not apply to him ; that he should go along and attend to his business ; this 
exception I understood to have been made subsequent to the payment of money by General 
Spencer to Judge Busteed; the actual payment of the money I know nothing about. 

Q. When was this conversation with Spencer.—A. In Montgomery, some time in the 
spring of 1868. 

Q. After you had been register about a year.—A. Yes, sir. 

Q. You say that Spencer told you the judge had made this order about the retention of 
money.—A. No; I knew that such an order was made. 

Q. Did you know it from Judge Busteed.—A. I knew it from the clerk of the court. 

Q. Not from any conversation with the judge.—A. No; I asked Spencer how he got along 
with that order, and he told me that the judge told him to go along and attend to his business, 
and the order would not affect him ; I supposed he had made his peace. 

Q. Did you ever talk with Judge Busteed about this matter yourself. —A. No, sir. 

Q. Did you have anything to say to him aboutyour business notcoming to you regularly.— 
A. No, sir. 

Q. Did Spencer try to get you to pay money to the judge.—A. Only at that conversation 
in Eutaw. 

Q. What reason did he assign for it then.—A. That the judge wanted money, and was 
corrupt; that was the impression he gave me ; I do not know that he used those words ; I 
do not say that he did ; that was my understanding, that the judge .wanted money, and if I 
wanted to get along comfortably, I had got to pay him money. 

Q. Do you recollect the day that Spencer told you that.—A. I cannot tell the day; it was 
in July, I8C7. 


196 

Q. Have you had any other conversations with Judge Busteed than the ones you have 
related.—A. Yes, a good many. 

Q. Have you had any other conversation with him relating to his being United States 
senator, or his desiring to be.—A. No, sir; I do not recollect that I had any since the 
beginning talk. 

Q. Do you say that the judge told you that if you would support him for the United States 
Senate he would confirm you as register.—A. He did, distinctly. 

Q. He made that proposition to you.—A. Yes, sir. 

Q. What did he say he would do if you refused.—A. He did not say what he would do ; 
he left that for inference. He told me he had favored the appointment of J. Q. Smith as 
register in that district; that he was his candidate for the place. 

Q. Previous to his confirming you he required of you a promise that you would make his 
son-in-law the assignee in such cases as you could.—A. Yes, sir. 

Q. Did he make that as a condition—A. I understood it it. 

Q. What reason did he allege for requiring you to do that.—A. He did not give any. 

Q. Have you stated all the conversation you had with him on that subject.—A. I 
believe so. 

Q. Did he say anything to you further about making Blake the assignee.—A. No, sir; 

I gave him my promise to do it. 

Q. Did you keep this promise.—A. I never had the opportunity. 

Q. Did you ever make Mr. Blake the assignee.—A. I never made any party assignee. 

Q. Why.—A. Judge Busteed suspended me from my office before I had an opportunity. 

Q. How long after you were appointed.—A. I was suspended in January, 1868; I received 
my appointment, I think, about the month of July, 1867. 

Q. When were you confirmed.—A. That I do not know; I do not consider that I w r as 
regularly confirmed until I received my commission. I considered myself then as confirmed. 

Q. What was the occasion of your suspension.—A. I was applied to first by one of my 
bondsmen to release him from the bond. The political hounding that I was going through 
down there had got to a very high pitch; I w r as shot, near Union Springs, in September, 
1867, and lay sick for a considerable time afterwards, from a pistol ball in the head. Going 
around the district to collect bankrupt petitions, I made republican speeches, and after one 
of these I got a pistol ball in the head, and was sick a long time. That put my business 
back considerably. The charges of all kinds that were made against me down there 
frightened my bondsmen, and one of them applied to me to release him from the bond. I 
told him that as soon as Judge Busteed returned from Montgomery I would substitute 
somebody else for him. He was not satisfied with that, and applied to the other bondsmen, 
and I understood that they applied to Judge Busteed to be released from the bond. A long 
series of charges against me was signed by members of the bar and sent to Judge Busteed 
at Mobile; and then he suspended me. I do not know whether it was on the application of 
the bondsmen for release, or these charges, that I was suspended. 

Q. Had you done anything in your office, except going around to get petitions in bank¬ 
ruptcy.—A. I was just beginning to hold first meetings of creditors, when the suspension 
came. 

Q. Have you been finally removed.—A. Never. 

Q. You still hold the office, suspended.—A. I am suspended, and the business of my 
office is given to Mr. Worrall, register for the first district, and has always been given to him. 

Q. What do you mean by being suspended.—A. That was the word used in the papers 
sent to me by the judge, that he suspended me from exercising the functions of my office, 
and which I believe he had no right to do, because the law allows him to remove, in all 
cases; and then a new register can be appointed. But he suspended me, and turned the 
business over to Mr. Worrall. 

Q. Did you ever have any talk with Judge Busteed about your suspension.—A. Yes. 

Q. What reason did he assign for it.—A. I wanted him to approve another bond that I 
had made. He said he could not do anything with the bond while these charges were in the x 
way. He would not look at it. He showed me the paper containing the charges, which he 
had then in his possession for some weeks; and he said he would do with them whatever I 
said. My desire was that he should investigate the matter. 

Q. Were those charges affecting your official duties.—A. No, sir; they were general 
charges that I w r as a thief, and had certain money from the Union League, &c.; I don’t 
recollect the w'hole of the charges now. All these copies of the newspapers were gathered 
together in one document. 

Q. They w-ere not with reference to any dereliction of duty in your office.—A. No, sir. 

Q. At either of those conversations did you have anything to say to the judge, or he to 
you, about the senatorship.—A. No, sir. 1 believed always that he w r as instigated to the 
course he pursued towards me, first by the fact of my refusal to support him for the United 
States Senate, and then from my refusal to help him to get a seat in the republican conven¬ 
tion, "which was denied him. 

Q. You did not understand that your refusal to pay him any money had anything to do 
with it.—A. I never did refuse. 

Q. Did Spencer say anything to you about paying him money.—A. In that first conver¬ 
sation he suggested that some time or other I would have to pay it. 


197 


Q. Did Spencer pay him money then.—A. Not to my knowledge. 

Q. Did he tell you so. A. He did not say that he had, and i did not understand that 
Ii6 bad. 

By Mr. WOODBRIDGE: 

s Q- Who were the persons who signed this second bond.—A. I made two bonds, one for 
$10,000 and another for $5,000. The $5,000 bond was signed by J. P. Stow, of Mont¬ 
gomery; and the $10,000 bond was signed by Governor Smith, of Alabama, Mr. Buckler, 
member of Congress, Major Pearce, member of Congress, Dr. Cloud, superintendent of 
education in Alabama, and a gentleman named Griffith. 

Q. Were the persons who signed these bonds competent to respond.—A. In my judgment 
the bonds were good for double the amount. 

By Mr. Eldridge : 

Q. Are you a native of Alabama.—A. No, sir; I lived in Montgomery, Alabama, since 
September, 1865. 

Q. What is your native place. —A. Philadelphia. 

Q. Did you go to Alabama to settle, or as an officer of the government.—A. I went south 
with the intention of getting a home, where my wife, who was in ill health, would probably 
be better than in a northern climate. 

Q. You did not go down as an officer of the army.—A. No. 

Q. Did you go down in the employ of the Freedmen’s Bureau.—A. No, sir. 

Q. Were you in the employ of the Freedmen’s Bureau.—A. I was for a time General 
Swayne’s private secretary. 

Q. During the time you were his private secretary were you engaged in organizing 
leagues.—A. Yes. 

Q. Did he send you to organize them.—A. No, sir. 

Q. Did he ever send you to organize negroes.—A. No, sir. 

Q. He says he did.—A. I was sent once to Mobile with Professor Silsbee, when danger of 
a riot was imminent there. 

Q. Were you sent there then to organize leagues.—A. I did not understand that I was 
sent to organize leagues so much as to stop the course of conduct of some members of the 
republican party, which we thought was calculated to lead to riot and disturbance. Some 
very exciting harangues were made in the churches in Mobile, at colored meetings, which 
General Swayne was complained to about, and he was apprehensive that they would lead to 
bloodshed. 

Q. Were there any charges made against you that you were attending more to politics 
than you were to your office. —A. Not to my knowledge. 

Q. Was not that one of the charges made against you.— A. I do not know. 

Q. That while you were gathering in petitions you were making political speeches.—A. I 
do not know that that was one of the written charges; if it was I do not recollect. 

By Mr. Churchill : 

Q. Had you filed any petitions in bankruptcy at all.—A. Yes. 

Q. Had any further action been had upon them.—A. Yes ; they had been referred to me 
to the number of nearly a hundred. 

Q. Then there was no difficulty, so far as you were concerned, in having cases referred 
back to you, though you had not paid the deposit money to the clerk.—A. The deposit 
money, in many cases, had been paid in. In some of them I had received the money and 
had retained it. 

Q. The deposit money in the other cases had been paid before you were confirmed.—A. 
Some I paid in myself. 

Q. Did you fail to pay in any case.—A. I did not pay it all in ; I did not know what was 
required of us at the time. In driving about the district and in organizing my business I 
incurred considerable expense, and some of the money that was paid to me with the peti¬ 
tions when they were sworn to I have still in my hands, and expected to have a rule in court 
made. I understood that in New York the rule adopted was that the register who received 
money on deposit retained one-half in his own hands, the other beiDg returned to pay the 
clerk and marshal; I anticipated that some such rule would be made in Alabama, and hav¬ 
ing those expenses to incur I had retained part of the money which I received ; part of it I 
had paid in; and in other cases the parties themselves had paid the money to the clerk. 

Q. In the cases where you had not paid the deposit, was the reference made to you.—A. 
Yes, sir. 

Q. There was no distinction made.—A. Not any; all the cases in my district were re¬ 
ferred to me up to the date of my suspension. 

By Mr. Eldridge : 

Q. Then what did you mean by saying that you had difficulty all the time with your 
business. —A. We wanted some such rule made with reference to the deposit of money. 

By Mr. Churchill : 

Q. Had you applied for any such rule.—A. I did; I went all the way to Long Island to 
see Judge Busteed and get him to make the rule. I waited at his house several days for 


198 


that purpose. He was in Boston, and they expected him daily: but he did not return 
within the time that I could stay there. 

Q. Did you ever apply to the judge for the rule.—A. Yes, sir. 

Q. Where.—A. I do not think I made a direct application to him ; I have an indistinct 
recollection of having written to him about it; but I am not certain. 

Q. And you made no personal application to him.—A. No, sir. 

Q. What embarrassment, then, did you have after you received your commission, in July, 
up to the time of your suspension, in the performance of the duties of your office.—A. None, 
directly. 

Q. What indirect embarrassment did you have, if any.—A. The absence of any rule in 
relation to fees was an embarrassment, because it did not let us know what we could depend 
upon. 

Q. And such a rule you never applied for, so far as you now remember.—A. Rules were 
promulgated by the judge during this time, but they did not seem to cover the ground, and 
I was hoping to get some arrangement made when this suspension came. 

Q. Do you know that any other register ever applied for such a rule to be made by Judge 
Busteed.—A. I do not know. 

Q. Then it was not the fault of the judge, so far as you know, that no such rule was 
made prior to the time of your suspension.—A. I do not know that it was. 

By Judge Busteed : 

Q. When did you first go into Alabama.—A. In June, 1865. 

Q. How did you happen to go there.—A. I went there at the request of Dr. White, of New 
Orleans. He was medical director in the New Orleans department. 

Q. You wore never in the army, were you.—A. No, sir. 

Q. What business were you engaged in when you first went to Alabama.—A. I went 
there to assist Dr. Stevenson, the medical purveyor, in straightening up his accounts. 

Q. How long did you stay with him down there.—A. Until lie left there, about two 
months afterwards. 

Q. What did you do afterwards in Alabama for a living.—A. I went to Montgomery and 
reported the proceedings of the convention called by Governor Parsons. 

Q. For what.—A. For the Washington Chronicle. 

Q. What was your business in Philadelphia. What did you do for a living there.—A. I 
was in the liquor business, partly, and I was financial editor of the Philadelphia Press. 

Q. You failed in the liquor business in Philadelphia.—A. Yes. 

Q. When did you first see Judge Busteed.—A. At the argument in reference to the con¬ 
stitutionality of the lawyers’ test oath. 

Q. Did you introduce yourself to Judge Busteed.—A. I do not recollect. 

Q. Are you an attorney at law.—A. I believe so. 

By Mr. Eldridge : 

Q. Do you not know.—A. My name was entered as a law student iu Philadelphia several 
years ago. I have read a good deal of law, and Judge Busteed admitted me to practice as 
an attorney in the United States district court iu Alabama. If that makes me an attorney, 

I am one. 

By Judge Busteed : 

Q. How did Judge Busteed come to admit you into his court as an attorney; was it on 
your request.—A. Yes, sir. 

Q. Was it on your written request.—A. Yes, sir. 

Q. And verbal request again.—A. Yes; verbal first and written afterwards. 

Q. Was the request urgent on that behalf.—A. Yes. 

Q. Look at the paper shown you, and say if it is in your handwriting.—A. Yes. 

Judge Busteed read the letter, as follows: 

“Montgomery, December 24, ]865. 

“ Dear Sir : I have received two letters, between which 1 am completely crushed. My 
wife wrote me that the cancer was cut from her breast, and she had had a poor recovery, and 
it was feared that she would not get well unless she could be speedily removed to a more 
congenial climate. The action of the President in sending his pardons directly to the appli¬ 
cants cut me off trom my pay for nearly all the summer’s work ; and the parties I labored for 
were so mean that they did not repay me the six dollars fee on each application that I paid 
to Governor Parson’s pardon clerk. One of them told me, through his lawyer here, that I was 
only a Yankee speculator, and might go back to the north or to the devil for all he cared. 
This cut me off from the means on which I relied for bringing my wife and little ones south. 

I wrote to her three days ago to sell her furniture to get the money to come here, and told her 
I would be admitted to your bar, and that with hard work and the blessing of Providence 
better days were in store tor us again. I would not for this right hand have her come here to 
find that I had told her what was not true, and that I had no dependence for her bread for 
six months to come. 

“This morning I received your letter. I do not think Mr. Safford meant to be under¬ 
stood otherwise than as recommending me for admission. I cannot understand any man if 


199 


he did. I have been open and candid with you, and mean to continue so. I do not expect 
to take rank at the bar without hard and long-continued work. I believe it will take 20 years 
of midnight oil to make such a lawyer as I would be willing to be, and I am prepared to 
burn it. But I am no longer young, and I must feed the little mouths dependent upon my 
daily toil. 

“ If I were admitted to your bar I would have a position among the people here that 
would give me several advantages. General Grant and other officials have reported what 
they saw and heard, no doubt faithfully. If they were here, poor and friendless, trying by 
hard labor to earn an honest living, they might learn and see more of the popular feeling 
toward ‘ the damned Yankees’than they have done. I need help to stem this tide, and I 
appeal to you to extend it to me. There is a large amount of business that I cannot touch 
as a correspondent of a northern paper, or as a reporte'r for the Advertiser, but which I 
could get a fair share of if I was recognized as a lawyer, and which involves no very great 
legal knowledge. It is the preparation and forwarding of claims upon the United States 
government for the destruction or appropriation of the property of loyal people by our troops. 
The members from Randolph, Winston, and other counties where the rebellion was consist¬ 
ently opposed all through the war, have promised to throw much of this business into my 
hands if I can appear as an attorney. There are many other ways in which I could pick up 
a few dollars Avithout appearing in court. Meanwhile I am giving e\ r ery spare hour to study, 
robbing sleep to fit myself for more creditable functions. I have gone through two volumes 
of Bouvier’s Institutes, thoroughly, and when I have finished the others I will take up the 
books you recommend. I will not, if admitted, disgrace you. I will not disgrace myself. 

“ Unmanly tears are in my eyes while I write to you, but I cannot keep them back. You 
held out the promise of this thing to me. Do not thrust me away from it now. I know 
what you can do if you will, and if you do it I promise you the life-long fealty of a man 
who never forgets a friend’s favors or turns his back upon him. 

“You will please notice what Judge Kelley says in the second paragraph of t^ie enclosed 
note. 

“ I hope it is not asking too much to request an early answer to this begging letter. 

“ Very respectfully, yours, 

“JOHN C. KEFFEK. 


“ Hon. Richard Busteed, 

“Mobile Alabama .” 


Q Do you recollect when you were admitted to Judge Bnsteed’s court.—A. Yes. 

Q. Was it after the Avriting of that letter.—A. A long time after that. 

Q. During the time that elapsed between the Avriting of that letter and your admission to 
the court you had several intervieAvs with Judge Busteed on the subject, and urgently begged 
your admission, did you.—A. No, sir. 

Q. Had you any.—A. No, sir. 

Q. Had you never any oral communication Avith Judge Busteed on the subject after this 
letter and before your admission.—A. Never until the day that I Avas admitted. 

Q. When was that.—A. In November, 1806, I think. 

Q. Do you recollect Avhat the process of your admission Avas.— A. Yes. 

Q. State it.—A. Judge Busteed asked me in his room if I still desired to become a laAvyer. 
I told him I did. He made me write an application for admission. He told Mr. Worrall to 
endorse on it what he dictated to him, (I do not recollect the words now,) and he gave it his 
approval, and told me to go and sign the roll of attorneys. 

Q. Do you recollect that the matter was referred to James Q. Smith and Lawrence Wor¬ 
rell as a committee, or have you forgotten that.—A. If it was so referred I never appeared 
before them. 

Q. Do you recollect now that it was referred to them.—A. I do not recollect James Q. 
Smith in the matter. 

Q. And that, on their report to the court, you were admitted.—A. I remember it just as I 
stated : that you told Mr. Worrall Avhat to write on the application, and that he Avrote it, and 
you signed your name to it—all on the same table, and all within 10 minutes. 

Q. And you Avere admitted in that Avay to appear and act in court. —A. Yes. 

Q. Look at the paper shoAvn you, and say whether that is in your handwriting.—A. Yes, 
sir ; that is my handwriting. 

Q. And the signature to this printed paper is in your handwriting.—A. Yes, sir. 

Q. And the printed paper is the enclosure to which the other refers.—A. Yes, sir. 

Judge Busteed remarked that the printed paper Avas merely informing him of his election 
as director of some grand trunk railway company, to run he did not know Avhere. 

The letter Avas read as folloAvs, the date being fixed as March 5, 1867 : 

“ Dear Judge : I took the liberty of nominating you for the within, Avhich I believe you 
already know something about. 

“Judge W. H. Smith starts on Monday for the capital, and Colonel Reese expects to follow 
in a fevv^days. They think the prospects for the passage of the bill good. 

“ Have you any aspirations for the United States Senate? I am grand secretary of the 
Union League, and in constant correspondence with the Avorking men who are running that 


200 


organization, now upwards of 18,000 strong, and in looking to the future I may as well work 
for a definite object as not. I have mentioned you as the man who must preside over the 
constitutional convention when it is formed, and I would like to know whether you consider 
yourself buried politically or still living. 

‘ Tra,yy0urs ’ -‘J. C. KEFFEE.” 


Q. Did you practice as an attorney of the court after your admission. A. No, sir. . 

<^. Then the objects which you stated in that letter of December 24, lb65, as having in 
view in being admitted were not realized in fact, were they.—A. The time was gone by. 

Q. They were not realized in fact.—A. They were not. 

Q. When did you first go with General Swayne.—A. In the spring of 1866, I think. 

Q. You were with him in April, 1867, were you not.—A. Yes, sir. 

Q. Is this in your handwriting.—A. Yes, sir. 

Judge Busteed read the letter as follows : 


“ Headquarters District of Alabama, 

11 Montgomery, Ala., April 8, 1867. 

Dear Sir: Gustavus Horton is the man in Mobile to apply to about the Union League. 
You should become a member as soon as possible. The Lincoln Council (colored, 600 strong) 
meets here on Thursday nights. I want you to attend one of those meetings and make them a 
speech. 

“I write by to-day’s mail to Lawrence S. Berry (the gentleman I told you about) that 
you said you would seek to make his acquaintance. He is to be found at the Nationalist’s 
office or the Freedmen’s Savings Bank. Be cautious not to show your hand to him at present. 
I have told him that I had mentioned him as a man to be sent to Congress to several promi¬ 
nent people, who had received the suggestion favorably; and I have advised him to get a 
residence in the Marengo district, for obvious reasons. 

“We are very busy, worked almost to death in daytime, and at night I have the league 
correspondence to keep up. But General Pope talks of moving soon to Atlanta, when I trust 
there will be less to do. 

“ Respectfully, .yours, 

“JOHN C. IvEFFER. 

“Hon. Richard Busteed, AJe&i/e.” 


Q. The Lawrence S. Berry mentioned in this letter is a negro.—A. Yes, sir. 

Q. It was in May, 1867, that I demanded, as a condition of your getting the appointment 
of register in bankruptcy, that you should support me as United States senator, was it not.— 
A. 1 think it was. It was at the time when my confirmation was pending. 

Q. Do you know how you came to be named by the Chief Justice for register in.bank¬ 
ruptcy.—A. On my application and on the recommendation of my friends, I suppose. 

Q. Was your application a written one.—A. Yes. 

Q. Who signed your recommendations.—A. I was recommended by Dr. Townsend, of 
Ohio, by General Swayne, and by John Russell Young, of the New York Tribune. These 
gentlemen wrote letters to Judge Chase recommending my appointment. 

Q. None of them signed the recommendation itself.—A. No, sir; I think I did not get up 
a regular form of recommendation. 

Q. Were there any other persons who sent letters to the Chief Justice asking your nomi¬ 
nation.—A. I do not recollect others now. 

Q. Would you be likely to remember them if there were any others.—A. I wrote letters 
to a good many of my friends, asking them to use their influence. Who did, and who did 
not, I do not recollect. 

Q. General Swayne was very anxious to get you the place, was he not.—A. He recom¬ 
mended me. 

Q. Was he not very anxious for you to get the place.—A. I cannot tell. I think he was. 
He seemed to be. 

Q. When was this conversation with General Spencer in Eutaw.—A. I think it was in 
July, 1867. 

Q. Eayly or late in July.—A. I cannot tell. 

Q. Was it as early as the 16th of July.—A. I cannot tell. 

Q. Was it as late as the 20th.—A. I cannot tell that. 

Q. How do you know that it was in July at all.—A. It was preparatory to the election. 
The election was held in October. In September I was canvassing in another part of the 
State, and prior to that, some time. I was in western Alabama. 

Q. When did you leave the service of the Freedmen’s Bureau.—A. I left the service the 
1st of September, 1867. 

Q. Did your salary run, from the bureau, up to the 1st of September, 1867.—A. To the 
best of my knowledge, it did. 

Q. And you were appointed register in bankruptcy in June, 1867.—A. Some time prior to 
that. 


r 201 


Q. And General Swayne knew it, did he not.—A. I do not know whether he did or not. 

Q- You were absent from the city of Montgomery frequently during the months of Jan¬ 
uary, February, March, April, May, June, and July, 1807, were you not.—A. Not much. 

Q. You were absent.—A. Very seldom and for a very short time, excepting two trips to 
western Alabama of a week or two duration. 

Q. Your pay as clerk in the Freedmen’s Bureau ran all that while, did it not.—A. My pay 
kept up as long as I did my work. 

Q. You got pay from the Freedmen’s Bureau while you were absent, in the State, as you 
described, did you not.—A. I mean to explain what I understand about that. Every clerk 
in the bureau had a certain time allowed him for summer vacation. I had been two sum¬ 
mers without vacation, and I took my vacation to go canvassing out in western Alabama. 

Q. Look at the letter shown you and say if you wrote that.—A. I did. 

Judge Busteed read the letter as follows : 


“Montgomery, Alabama, July 22, 1867. 

“Dear Judge: Your letter of the 11th was not received until to-day, owing to my 
absence. I was very much run down, and as some inspection of the board of registration 
was required I obtaiued permission to oversee two or three of them, and took a mule and 
buggy down into Pike, Crenshaw, Butler, and Bullock counties. Down in the ‘ Piney 
Woods’ I felt very well, but no sooner got back into the prairie country than the diarrhoea, 
which I always have, more or less, set in again, and to-day I am weak as a kitten. I wish 
I could accept such an offer as you kindly and generously make, but it is out of the ques¬ 
tion for this year. Perhaps next summer I can afford to go north; and if so, I would he 
delighted to see your home at Jamaica. I have a very dear friend there, whom you prob¬ 
ably know—Robert L. Smith—and have very pleasant recollections of the place. 


“ Quite a number of petitions are ready for filing, I am told, and one is filed. Mr. Storer 
waits for instructions from you before he is willing to do anything. Will you please look at 
Rules IV, V, XXVIII, of the General Orders in Bankruptcy, and send him directions, and 
your orders for my guidance. I propose, with your permission, to direct advertisement to 
be made in two papers, the Sentinel to be always one, and the other one of three or four 
papers hereabout that support the Union cause and suffer therefor, dividing among them so 
as to help them all a little. 

“Judge Smith has a few cases coming from some clients up in his mountains, and would 
like them referred to me for his convenience. Can Mr. Storer do this when the attorney 
residing here requests it ! 

“The North and South Railroad Company, it is said, is to be forced into bankruptcy. 

“You will please designate the depository for money. The only government depository 
in the lower part of the State is at Mobile, where Albert Elmore is depositary. That is not 
in this congressional district. 

“I think this climate in summer very bad for any lung trouble, and I suppose we shall 
hardly see you till fall. I made a speech at Tuskegee on Saturday and never had so much 
difficulty in speaking in my life. One breathes this heavy, moist air under protest all the 
time, and out-door talking with the thermometer at 96 is next to impossible. 

“I am trying to get the Nationalists you want. I have some of the back numbers and 
will send them, and those which come hereafter. I trust I can find the missing ones. 

“Governor Watts, General Clanton, Judge Goldthwaite, and some others start to-morrow 
for Texas. Goldthwaite, Felder says, will return in two weeks, and the others in a month. 
Some little girls, daughters of Judge Judge, I believe, were in the Tuskegee stage on Sat¬ 
urday, and said that Governor Watts, Clanton, and their father, sought to find a home in 
Texas to emigrate to. 

“I am very anxious to get to work, and to leave the bureau, where the labor is as heavy 
as the wages are light. Hence I venture to ask you again to send } r our commands to Mr. 
Storer as soon as you conveniently can. 

“Yours truly, 

“J. C. KEFFEE. 

“ Hon. Richard Busteed, New York." 


January 22, 1869. 

Cross-examination of John C. Keffer. 

By Judge Busteed: 

Q. Look at the paper now shown you and say if it is in your handwriting.—A. Yes. 

Judge Busteed read the following letter, viz : 

“NEW YORK, October 29, 1867. 

“Dear Judge: I have waited five days to see you and cannot wait any longer. What 
with good fare, seaboard air, and your good brother’s excellent nursing, I am, compared 
with what I was when I came here last Friday, like the girl who took a box of Brandreth’s 
pills over night and found herself quite another thing in the morning. 


202 


“I came here scarcely able to walk. After five days I am good for another Alabama cam¬ 
paign. Moreover, the doctor has taught me how to play California Jack, but he beats me 
awfully at it. 

“I am writing this with bad ink and in a room so dark I cannot see the lines. 

“What puzzles me is how any man with such a lovely house as the one I have been enjoy¬ 
ing can make up his mind to come to poor God-forsaken Alabama and hold courts among 
rebel lawyers. But the soldiers used to say, ‘ Who wouldn’t sell his farm and enlist for a 
soldier.’ . 

“I have been looking over your treasures, and I am reminded of the old rector who went 
to visit the bishop. The bishop gave him an easy chair in a splendid apartment with beau¬ 
tiful landscape views out of the windows, and splendid paintings on the walls, and slippers 
for his tired feet, and a good glass of wine, and the old man, looking about and heaving a 
sigh, says, ‘All this, and heaven too!’ 

“I’ve gone back on the old man a little. I thought, ‘All this, and hold courts in Ala¬ 
bama!’ 

“ But if you will do it, I’ll meet you in Huntsville soon, unless you are coming to Mont¬ 
gomery. 

“I have hired a clerk in Philadelphia who is on his way to Montgomery, and who is a 
splendid phonographic reporter, and who I mean to have report convention, &c., for Hardy. 

“ I had to lay out some money to help him. south, but I guess I can get home without 
help. If you don’t make J. Q. S. register instead of Doster, cannot you afford to appoint 
John O. I). Smith? He ought to have it, and let J. Q. have the 1st district. 

“Meanwhile, there are some applications a long time filed (which ought to be acted on) 
belonging to that district. Will you appoint a register at once, or refer them to me ? An 
order is necessary in the latter case. One Thomas B. Dryer has a petition filed, which his 
lawyer says ought to be acted on at once, and if you don’t appoint a register for that district 
now, the man wants a special order of reference to me or some one who will act on it. 

“ Very few cases have been filed as yet in my district; about 16 or 17 ; and my trip to the 
different county seats cost me nearly $400, not counting my broken head. 

“It costs $24 to make the marshal’s advertisement of the first meeting of creditors, and the 
applicants seem to think that the $50 deposit ought to pay all fees. 

“ Spencer seemed to think that the registers should keep the $50. In some places the 
judges direct that a proportion (about $30) shall be paid at once to the register. I think you 
ought to make such an order for the sake of conformity. 

“Hereafter, I am sure, General Healy will require payment of advertising fees and costs 
before incurring liability for them as heretofore. 

“ I have been troubled by Mr. Blake’s absence, as I wish to appoint him my assignee. 

“ Please post me up as to his whereabouts ; whether he will attend to business of this sort 
in Alabama, &c. 

“ 1 am very sorry I could not have a free talk over these and other matters with you, as it 
was for that I came north, instead of taking a rest among the mountaineers of Alabama. But 
man proposes and God disposes. 

“ I hope you will be at Huntsville, so that the registers can meet you there. 

“Please write to me at Montgomery, as to the few matters mooted in this. 

“Remember me kindly to your good brother, whom I will never forget, and excuse me for 
not waiting longer to see you. 

“ Yours truly. 


“J. C. KEFFER.’’ 


Q. You went back to Alabama without seeing Judge Busteed, in 1867, did you not.—A. 
Yes, sir. 

Q. And you did not see him again until you saw him in Montgomery, on the 12th of Feb¬ 
ruary, 1868, or about that time.—A. I did not. 

Q. And when you saw him in Montgomery, in 1868, he was just from Mobile, and on 
crutches.—A. Yes, sir. 

Q. In the mean time these petitions for your removal had been sent to the judge, as you 
say.—A. Yes. 

Q. Judge Busteed showed you the original papers, did he not, in Montgomery.—A. Yes. 

Q. And asked you whether you desired an investigation of them, or whether he should 
file them, did he not.—A. Yes. 

Q. And did you not answer the judge that you preferred to have them filed, because you 
wanted to bring libel suits.—A. Yes; but that statement needs a little modification. I 
asked Judge Busteed to advise me what course to take in the matter. He said that he did 
not like to give me any advice, at first; and then suggested to me, as the better course for 
me under the circumstances, to file the papers in his court, and bring libel suits against the 
parties signing it. He told me at the same time he did not believe one word of the charges. 
Under that assurance I did not think it necessary for me to have an investigation in his 
court. 

Q. The petition was filed in court, was it not.—A. It was, subsequently. I received a 
notice from the clerk of the court that it had been filed. 


203 


Q. This petition for your removal was signed by the bar and by the public.—A. Yes. 

Q. Are you acquainted with the seal of the district court of the United States for the 
middle district of Alabama, and with the signature of Blake, its clerk; and is the paper now 
shown you signed by Blake, the clerk, and sealed with the seal of the court.—A. I am ac¬ 
quainted with the seal and signature, and those upon the paper are the genuine. 

Judge Busteed read the following, viz: ' 


“State of Alabama, Montgomery County. 

“ To the Hon. Richard Busteed, judge United States district court for the district of Alabama: 

“Sir: The undersigned members of the bar of said county, respectfully and earnestly 
urge upon your honor the removal from office of John C. Keffer, register in bankruptcy in 
said county, for the county and district of Montgomery. 

“We make the following charges, and here allege our willingness and ability to prove 
them at any time or place : 

“ 1st. The general character of Mr. Keffer for honesty and integrity is so bad that many 
parties who desire to apply for the benefit of the bankrupt law will not file their applica¬ 
tions while he is register, because they are afraid to trust him with their assets. 

“2d. Mr. Keffer was a member of apolitical association known as the League; he has 
recently been expelled therefrom on the charge of dishonestly appropriating the funds of the 
association. 

“3d. He has refused to pay a widow lady her bill for the board of himself and family, 
and has been imprisoned in the county jail under bail process, at her instance, on the charge. 

“4th. He has been arrested under affidavit and warrant charging him with the crime of 
perjury, and upon the trial before the examining court, was discharged upon a mere techni¬ 
cal point, not going to the merits of the case. 

“5th. His social and private relations in the community are such as are unbecoming a 
gentleman or an officer of the United States government in any capacity, civil, military, or 
judicial. 

“ These allegations are made with a full sense of their importance. We can prove them. 
Besides, Mr. Heffer is not a lawyer, either by education, practice, or experience. He has 
a license to practice, obtained for the purpose of this appointment. 

“ In the event of the removal of Mr. Heffer, the undersigned respectfully represent to your 
honor that Colonel Abraham Edwards, late United States army, is well qualified for the posi¬ 
tion of register, and that his appointment would be very satisfactory to this community, and 
would secure to the court the services of an efficient, reliable, and honest officer. 


“ J. A. Elmore. 

W. H. Graves. 
Jefferson Falkner. 
D. S. Troy. 

J. W. A. Sanford. 
John G. Winter. 
Alex. B. Cletherall. 


Geo. W. Stone. 

Jas. H. Clanton. 

T. T\ Holtzelaw. 
Bichard M. Goldthwait. 
T. H. Watts. 

W. F. Witcher. 

T. Clanton. 


“ On information and belief I affix my signature to this paper: 

“A. Martin. Barna McKenzie. 

M. D. Graham. F. L. Given. 

“Montgomery, Alabama, January 31, J868.” 


“ United States District Court, Middle District of Alabama ; 

“ I, E. C. Y. Blake, clerk of the district court of the United States for the district of Ala- 
bama, do hereby certify that the foregoing is a true and correct copy of the original on file 
in my office. 

“ Witness my hand and the seal of said district court, this 16th day of June, A. D. 1868. 
[seal.] “E. C. V. BLAKE, 

“ Clerk United Stales District Court for Middle District of Alabama 

Judge Busteed was proceeding to read the petition and charges signed by various citi¬ 
zens of Alabama, making the same request for the removal of Keffer, which he stated were 
precisely the same as the foregoing petition of the bar. The reading was suspended at the 
suggestion of the committee. The petition was signed by 59 citizens. 

Judge Busteed also read the following petition of the bar in Montgomery, viz : 

“Montgomery, January 29, 1868. 

“The undersigned members of the bar in Montgomery beg leave respectfully to represent 
to your honor that John C. Keffer, esq , late register in bankruptcy in this district, has made 
himself very offensive to the public by bis evil and degrading association, by the mischievous 
and demoralizing sentiments he gives utterance to, and that there is a general and wide¬ 
spread distrust of his integrity, both official and personal. 


204 


“We hope lie will not be retained in office, and that Colonel Abraham Edwards will be 
appointed in his stead. 

“We are, very respectfully, your obedient servants, 

“W. H Graves. 

J. A. Rhea. 

S. D. Steed man. 

E. P. Morrissett. 

Barna McKenzie. 

Y. S. Murphy. 

John G. Winter. 

D. H. Workman. 

James H. Clanton. 

T. S. Sayre. 

George W. Stone. 

“ Without preferring charges against Mr. Keffer, I cordially and respectfully recommend 
the appointment of Colonel Edwards. He possesses the confidence of the bar and community. 

“RICHARD TAYLER. 


Alex. 13. Clitherall. 

M. D. Graham. 

J. T. Holtzclaw. 

A. Martin. 

J. H. Watts. 

D. S. Troy. 

Wade Keyes. 

Richard M. Goldthwaite. 
John W. A. Sanford. 
Samuel F. Rice. 


“Hon. Richard Busteed, 

“ Judge of United States District Court. 


Q. Look at the paper now shown you, and tell me wdiether it is in your handwriting.— 

A. It is. 

Judge Busteed read the following, viz: 

“Mobile, January 23, 1868. 

“ Dear Sir : I have waited all this week in the hope of seeing you for a few minutes, and 
though the trouble I still have from a similar outrage to that which has prostrated you 
admonishes me not to harass you, I trust you will pardon me for adopting Mr. Worrall’s sug¬ 
gestion of sending you this note. 

“I have been for five months steadily thwarting the scheme of your enemies, and carrying 
out my promises made to you. From this cause arose all the difficulties now pressing on me. 

“ Can you not approve my new bond and let me go back to my work until we can have a 
long free talk together, when I will come to you at any time? 

“ My family are now in want. One of my boys is sick, and I have not the means of stay¬ 
ing here over to-morrow. The other registers receive and hold the money deposited with 
petitions; but three-fourths of that deposited with those filed at Montgomery remains in Mr. 
Storer’s hands, aud I have not received sufficient to meet the expenses I have incurred in the 
prosecution of the business. 

“ Excuse me if I seem urgent, and try if you cannot put me on the way to do what I pro¬ 
mised you. You shall never regret it. 

“Yours truly, 

“J. C. KEFFER. 

“Hon. Richard Busteed.” 


Q. Do you recollect making application to Judge Busteed, when he came to Montgomery 
in 1868, to give you some money.—A. Yes, sir. 

Q. Or rather to have an order upon the clerk for some money.—A. Yes, sir. 

Q. What was the answer of the judge to that application.—A. I do not remember. 

Q. I have forgotten, Mr. Keffer, perhaps you can say, whether the money was actually 
given upon the occasion of my first visit to Montgomery, after I was shot, or upon my return 
from Stanwood’s plantation to Montgomery, subsequent to going to that plantation from 
Montgomery; can you recollect.—A. It was subsequent to the first visit. 

Q. Can you state whether it was not in the month of March, about the 9th, that the order 
was finally made.—A. I do not remember the date. 

Q. Do you recollect stating to the judge that your family were in an actual state of starva¬ 
tion, living on one meal a day, and that corn meal.—A. I did not state it so. 

Q. How did you state it.—A. I stated that I was much in need of money, and that my 
family had frequently lived on corn meal alone. 

Q. Iu one of your first letters to me you spoke of the sickness of your wife; she is deceased, 
your first wife, and you married again, and your last wife is living at Montgomery. —A. Yes. 

Q. Did not Judge Busteed finally give Storer an order to pay you $100 out of any funds 
that might be in his hands in the clerk’s office in Montgomery, applicable to your services as 
register in bankruptcy.—A. Yes. 

Q. And you got the money.—A. Y r es. 

Q. Do you recollect, in the presence of George E. Spencer, in the back room of J. Q. Smith, 
at Montgomery, having a very long conversation with Judge Busteed.—A. Yes, sir. 

Q. Do you recollect that one result of that conversation was an offer on your part—I will 
not call it an offer; a statement on your part—that if the judge would give you $500 you 
would leave the State of Alabama and not return to it.—A. No, I did not make that offer. 
I did not put it in the way of an offer. The proposition was made to me by Judge Busteed. 

Q. What proposition.—A. That Hardy had determined that I should leave the State ; and 


205 


lie (the judge) thought I had better go ; and, if I would go, he would furnish me with the 
means of going; that my enemies, outside of the party I belonged to and inside, were deter¬ 
mined I should have no power in the State, and he thought I had better go. 

Q. Well, what did you say to it yourself.—A. I told him I had not the means of going ; 
that I would not go with these charges hanging over me; that I intended to stay there until 
I lived down these charges ; but that if he intended to take away the business in bankruptcy 
trom me, and would give me any reasonable part of the compensation I thought I was entitled 
to, I would not say any more about it, but would let Worrall go on and exercise the functions 
of the office. He told me he had been trying to have Worrall give me $500 ; but he did not 
control Worrall, and he did not know whether lie would or not. 

Q. How much money, as bankrupt register, came into your hands before your suspension 
or removal from office.—A. I cannot tell the amount exactly; I think about $1,350. 

Q. Have you any book showing what the receipts of these moneys actually were.—A. I 
have a book containing the list of cases filed. 

Q. Have you any books showing what your receipts have been from that source.—A. No 
other than my regular memorandum of cases filed. 

Q. Will you state to this committee, under oath, that you have not received upwards of 
$1,500.—A. I have not, to the best of my knowledge—not including the $100. 

Q. No ; excluding the $100 which I got Storer to give you.—A. I have not, to the best of 
my knowledge. 

Q. Have you any knowledge which enables you to state confidently with reference to the 
fact.—A. My recollection is that I received $1,350. 

Q. Beginning at what time in 1807 to receive the $1,350.—A. In September, 1807. 

Q. And the order to Storer directing him not to send any more cases to you was given 
when.—A. In January, 1868. 

Q. After Judge Busteed left Alabama in June, 1868, you never saw him again, did you, 
until you saw him in Washington.—A. I believe not. 

Q. Did you ever write to him between those times.—A. I did not. 

Q. Did you ever make an application to him for reinstatement of yourself into office.—A. No. 
Q. Or a demand that these charges should be investigated.—A. I did not have opportunity 
to do it. 

Q. You either did or did not; will you state which is the fact.—A. I did not write to him. 
Q. Were you in Washington on or about the month of June or July, 1868.—A. I came 
here after the Chicago convention, and staid here some little time. 

Q. Can you answer me whether you were in June or July, 1868.—A. I think I was here 
either in May or June, 1868. 

Q. Did you return to Montgomery after having been to Chicago, and then come back to 
Washington in that year.—A. No. 

Q. The paper with regard to articles of impeachment against Judge Busteed was originally 
presented by Judge Kelley to the House of Kepresentatives; had you seen such a paper as 
that before.—A. Yes. 

Q Who got it printed.—A. I did. 

Q. Where was it printed.—A. In Washington city. 

Q. When.—A. At the time it was dated. 

Q. What was it printed from.—A. From Major Semple’s manuscript. 

Q. State to the committee whether the whole of it, as it appears, was from Major Semple’s 
manuscript, or whether there was any addition to his.manuscript.—A. All below his signa¬ 
ture I added. 

Q. The addition is this, viz: “The following are the names of a few of the witnesses— 
men of every shade of political views and diversified interests, who may be relied upon to 
establish the character of this unjust judge.”—A. Yes; that is the part which I added. 

Q. Where did Major Semple give you this manuscript.—A. In Montgomery. 

Q. When.—A. Before I lef t to attend the Chicago convention. 

Q. Who paid your fare to Chicago.—A. I did. 

Q. Who gave you the money.—A. I borrowed the money in Montgomery. 

Q. From whom.—A. General Willard Warner loaned me $150, which I used on my trip. 
Q. Did you get any money from anybody else in Montgomery just before you left for 
Chicago.—A. Yes ; I got some from the colored members of the league of which I was presi¬ 
dent. 

Q. Did you get money from anybody else than the colored members of the league.—A. 1 
have no recollection of getting any other money. 

Q. Did you get any from Josiah Morris.—A. I do not recollect; I borrowed $50 from 
Josiah Morris at one time, but I do not recollect that it was at that particular time. He has 
frequently loaned me money; I now owe him $50 that I borrowed from him; I do not 
remember whether any part of that money was used when I went to Chicago ; I cannot tell: 
he did not give me money to go to Chicago. 

Q. Who paid for the printing of this paper.—A. Nobody did; it never was paid for. 

Q. Was it printed as a matter of love to you.—A. Yes; in the Chronicle office. 

Q. Did Mr. Forney know of it.—A. Not that I ever knew ; 1 never asked him anything 
about it. 


206 


Q. Did you attach these names to the paper without consulting Major Semple.—A. When 
Major Semple gave me the manuscript I suggested to him that it would be proper to add the 
names of such witnesses as would be likely to establish the truth of the charges. He said 
I might add anything I pleased to it, but not over his signature ; thereupon, when I got here, 
I added the names which are printed on this paper. 

Q. Did you consult any of the gentlemen named as to the use of their names.—A. No ; I 
did not cousult any man with direct reference to putting his name upon that paper; Gov¬ 
ernor Smith had expressed his opinion of Judge Busteed to me frequently, and other gentle¬ 
men on that list had. 

Q. Which other gentlemen.—A. General Swayne, Josiah Morris, General Warner, now 

United States senator from Alabama, Colonel Beecher- 

Q. He was in the Freedmen’s Bureau.—A. Yes. 

Q. Who else.—A. Albert Griffin. 

Q. Anybody else.—A. These are all whom I remember now. 

Q. You did not consult Robert M. Patten, governor of Alabama, did you.—A. No, sir. 

Q. Did you consult the Hon. John A. Campbell, of Mobile.—A. No, sir. 

Q. How many of these papers were printed.—A I do not remember; 1 think 100. There 
were more ; I think 250. 

Q. Were there not more than that—A. I do not think there were. 

Q. Have you any recollection now of the number of them that were printed.—A. No ; I 
cannot state precisely. 

Q. Will you say that there were not 500 of them printed.—A. Perhaps there were ; I think 
there was somewhere about half a ream of paper printed. 

Q. Who paid for the paper on which they were printed.—A. I do not know anything 
about it. 

Q. Has the printing ever been paid for that you know of.—A. It has not by me. 

Q. Has it ever been paid for that you know of.—A. I do not know that it has. 

Q. Are you acquainted with the Hon. Wm. D. Kelley, a member of the House of Rep¬ 
resentatives from Pennsylvania.—A. Yes. sir. 

Q. Did you send any of the papers to persons throughout the country.—A. A few of them. 
Q. About how many of them do you think.—A. Perhaps half a dozen. 

Q. Did you post-pay them.—A. 1 gave them to the newspaper correspondents here. 

Q. Did you yourself send any out.—A. I do not remember sending an} r . 

Q. If you did, did you send them post-paid, or if not, how otherwise.—A. I do not remem¬ 
ber sending any. 

Q. State whether you did not use the frank of Judge Kelley to send some of these papers 
throughout the country.—A. I do not remember that I did. 

Q. Will you say you did not.—A. I do not think I did. 

Q. It you did, was it with his knowledge and consent.—A. I never.used the frank of any 
member ot Congress without his knowledge and consent. 

Q. Did you use Judge Kelley’s frank with his knowledge and consent, if you used it, to 
send these papers out.—A. I have already answered that question substantially ; I do not 
remember having sent out any of these papers by mail, under frank or otherwise. 

Q. Did you send any of them to Harper & Brothers, of New York.—A. I do not remem¬ 
ber that-1 did. 

Q. Wiil you say whether you did or not.—A. I have no recollection that I did 
Q. If you did send any ot these papers to Harper & Brothers, did you send them under 
the frank of Judge Kelley.—A. I do rfot remember sending any; I do not think I did. 

Q. You were a member of the State convention which framed the constitution under 
which Alabama was admitted into the Union.—A. Yes, sir. 

Q. Were you elected.—A. I was elected. 

Q. I rom what county.—A. From Montgomery. 

Q. State what committee were you chairman of, if any, in that convention.—A. I was 
chairman of the committee on elections. 

Q. You helped to make up that constitution, did you.—A. I did. 

Q. I here is an office created under it, known as the commissioner of industrial resources, 
is there not.—A. Yes, sir. 

Q. Who got that office up.—A. Doctor Cloud ; it was proposed by him under the name 
of the bureau of agriculture. 

Q. With what object; having reference to any single person for whom a place was to be 
made. A. Not that I know of; the office of commissioner of industrial resources was created 
instead of the bureau of agriculture. 

Q. Are you superintendent of industrial resources now, under that constitution.—A. Yes. 

Q. Have you been expelled from the Alabama council of the Union League of America, 
situated in Montgomery. 

(Question objected to by the committee and withdrawn.) 

Q. Have you been indicted for perjury in Montgomery, Alabama.—A. Yes, sir. 

Q. Has that indictment been tried.—A. The only time I was able to meet that indictment 
it was ruled out of the justice’s court upon technical grounds urged b}" my counsel, in 
defiance of my wishes and in opposition to my urgent remonstrance and desire to be allowed 



207 


to meet the issue. 1 would state that when I was iu Washington attending to the interests 
of the State here, the grand jury of that county found a bill of indictment against me, upon 
some charge which I have never been able to meet in court, and which my counsel says the 
prosecuting attorney would not try, and will enter a nolle prosequi in the call. 

Q. Who was your attorney.—A. Judge Samuel F. Rice. 

By Mr. SEMPLE: 

Q. I see in this petition by the members of the bar, which has been offered in evidence, 
it is stated that J. C. lveffer was a member of the political association known as “ The 
League,” and was expelled therefrom for “dishonestly appropriating the funds of the asso¬ 
ciation do youknowanytliingwithreference to the charge ; if so, state the circumstances.— 
A. There were two leagues in Montgomery, the Montgomery council, composed of white 
men, and the Lincoln council, composed mainly of colored men—the latter numbering 3,000 
members ; I have always been and I am now the president of the latter. The Montgomery 
council numbered some 40 or 50 up to the time when I went out to canvass the State, before 
the trip in which I was shot; during my absence, in some manner unknown tome, a num¬ 
ber of other people were introduced as new members into the council, who appeared to be 
hostile to the republican party; when I got back some of these members of the council pre¬ 
ferred charges against me of the character stated in that petition; I met those charges in a 
meeting of the council, which was protracted over a night or two ; I was tried and acquitted. 
We then surrendered the charter to the grand council of the State, of which I am now secre¬ 
tary, and have been since its organization ; subsequently a few members of the Montgomery 
council, the organization which had been disbanded, met together, calling themselves “the 
Montgomery council,” and, without notice to me, expelled me in the manner stated in that 
petition. That is the explanation of the action of the Union League referred to. I am 
president of the only council that is located now in Montgomery, and secretary of the State 
council; I have never stolen any of their money, and I never had any amount of it to steal. 

Q. You say you are commissioner of industrial resources for Alabama.—A. Yes, sir. 

Q. Is that office filled by appointment or by election of the people of the whole State.— 
A. By election. It is a State office. 

Q. All the people of the State who are entitled to vote at all have a right to vote for the 
office, have they.—A. Yes, sir. 

By Mr. Eldridge : 

Q. Was that election held at the same time the constitution was adopted.—A. Yes. 

Q. Who ran against you.—A. Nobody. 

Q. There was no contest, then.—A. The State officers were all voted for upon the same 
ticket. The opponents of the republican party staid away from the polls. 

Q. You were unanimously elected, then.—A. I received about the same number of votes 
as the other candidates ; the governor ran ahead of his ticket. 

Q. There were no votes against you.—A. No, sir; I was unanimously elected. 

By Mr. Semple: 

Q. Now, if there is anything you wish to say to the committee, in explanation of any of 
the answers given by you to the questions of Judge Busteed, you can state it now.—A. The 
only things I wish to say are in regard to two matters—first, as to my continuance in the 
bureau. There was no case in bankruptcy referred to me for action until some time in No¬ 
vember. I continued in the bureau until about September. I did not get any case from 
the clerk until nearly a month after I left the bureau. 

Q. What was the date of the first order of reference to you.—A. The clerk marked upon 
the back of the petition the reference as of the date when the petition was filed ; but I did 
not get any of the petitions until November ; none of them ever came into my hands until 
after October, 1867. 

Q. What is the other matter you wish to explain.—A. The other is in reference to the let¬ 
ters produced by Judge Busteed. I had written to him at various times in reference to 
political matters and to matters connected with the court. I wish to make this explanation : 
that when Judge Busteed came to Alabama, and I made his acquaintance, I had great con¬ 
fidence in him as a man, and as a member of the republican party ; but I found him the 
hardest man to keep track of politically that I ever saw. I was ready, at first, to do almost 
anything for him. But he affiliated with men who had been associated with the rebellion 
very largely ; and when, at a rebel dinner given to him, he w r as reported to have said that 
if he had lived in the south he would have been as good a rebel as any of them- 

By Mr. Eldridge : 

Q. Do you not think he told the truth.—A. Yes, I do, now. These facts made me un¬ 
willing to have him elected to the Senate; but 1 continued to treat him civilly, and 1 hoped 
to keep him in the party. I had been willing to have him go to the Senate with General 
Swayne; and, at his request, I wrote a letter and sent it to the colored leaders at Mobile. 

Q. Which do you say, that you sent the letter or gave it to me.—A. I sent a letter to the 
colored men of Mobile, which is referred to in one of the letters w hich have been produced 
here, asking the colored men of Mobile to call upon him. They reported fo me that they 



208 


did call upon him, and that ho insulted them, and abused Congress aud the reconstruction 
acts; so that they went away from his presence indignant, and retorted upon me for sub¬ 
jecting them to such an insiWt. Then, he presided at a rebel meeting in Mobile- 

Judge Busteed stated that he did not see how this explained any letter he (the witness) 
had written. His only object in making this suggestion was to save time, as he had no 
possible objection to the witness going on to make any statement he chose to. 

By Mr. Eldridge: 

Q. How came yon, then, to write this letter in 1868.—A. You will find, I think, in none 
of my letters any affirmation of his political course or aspirations subsequent to June, 1867. 

Q. You say in that letter that you have “for five months been steadily thwarting the 
schemes of your (Judge Busteed’s) enemies, and carrying out my promises made to you;” 
to what “ promises” did you refer.—A. The promise referred to was to make Blake my 
assignee in bankruptcy. 

Q. Do these “ promises ” to which you refer in your letter relate alone to your promise to 
make Blake assignee in bankruptcy.—A. To make Blake my assignee and to look after his 
petitions wherever they were. He had been threatened with attacks of this kind before. 

Q. With attacks of what kind.—A. With this impeachment process. 

Q. What you refer to is your promise to prevent that if you could.—A. Yes. 

Q. And your promise, then, related to saving him from charges for the purposes of 
impeachment.—A. No. You put it too broadly. 

Q. Let us have your own statement, then.—A. I had been applied to to report the pro¬ 
ceedings in his court at one time with a view to base charges of impeachment against him, 
and I had refused to serve in that capacity. 

Q. Are you a phonographic writer.—A. No, but a good short-hand writer. 

Q. Now, do you say that this letter in which this passage occurs, that you “for five 
months have been steadily thwarting the schemes of your enemies and carrying out my 
promises made to you,” relates to your promises made to him to appoint Blake assignee in 
bankruptcy.—A. Principally; that is the main meaning. 

Q. Did it not relate to your promise to support him as senator.—A. No, I have never 
done anything to support him as senator. 

Q. Did you ever give him any assurance that you would support him as senator.—A. 
Never, after the first letter I wrote suggesting to him that he might be a candidate for sena¬ 
tor, and that I did not see why he might not be senator with General Swayne, if he would 
go to work. He did not keep his promise, and I considered myself released from my promises. 

Q. You say “ from this cause arose all the difficulties now pressing upon me.” To what 
do you refer.—A. A demand arose to make Judge Ely assignee in bankruptcy. I refused 
to do it, having promised Judge Busteed to appoint Blake. Captain Arthur was one of the 
sureties, and he applied to the other sureties to join him in application for release. His hostility 
towards me arose lrorn my refusal to appoint another man. 

Q. Now, had you not assured Judge Busteed, up to the date'of that letter, and including 
that date, that you were his friend.—A. Generally ; my general feelings were those of friend¬ 
ship. I had no enmity to him. 

Q. Had you ever given him to understand that you were not personally his friend in refer¬ 
ence to any matter.—A. Yes; I think he understood that, when I would not vote for his 
admission into that convention. 

Q. That was previous to the date of that letter.—A. It was. 

Q. Had you not reconciled that matter with him.—A. No; we used to talk about political 
matters there. 

Q. Had you any suspicion at that time that he was a corrupt judge.—A. I did not sus¬ 
pect that he was a corrupt judge. I considered him a very erratic politician. 

Q. When did you first believe him to be a corrupt judge.—A. When I began to hear the 
details about the cotton cases, and the wharf case in Mobile. 

Q. When was that. State when it was that you first began to believe him to be a corrupt 
judge.—A. Along through the last winter when he was holding his courts in Alabama. 

Q. At what time did he hold his last courts there.—A. I do not remember the time. He 
was holding his courf while I was away. 

Q. Will you give us, as near as you can, the time when Judge Busteed was holding his last 
courts in Alabama.—A. In the winter of 1867-68. 

Q. After January.—A. About the time he was shot. 

Q. Did he hold his last courts alter January.—A. Yes : he was holding a kind of court in 
chancery in the Stanwood case. 

Q, Now, answer my question: when did he hold his last court in Alabama. Was it in 
January, 1868, or did he hold one later.—A. Yes ; he held a court in May or June. 

Q. At the time when you wrote this letter, in January 23, 1868, had you begun to believe 
him to be a corrupt judge.—A. I was having suspicions of him. 

Q. \ou were; why then were you “trying to thwart the schemes of his enemies.”—A. I 
had been doing that. 

Q. In that letter you say, “ I have for five months,” up to the date of this letter. Why, if 
you had begun to have suspicions of him as a corrupt judge—why were you “trying'to 



209 


thwart ” these schemes.—A. The schemes of his enemies were very different in their char¬ 
acter ; some of them were political, and some of them were personal. 

Q. I am not speaking either of political or personal schemes ; I am speaking of his offi¬ 
cial acts; and you say that you had began to suspect that he was a corrupt judjre at the 
time you wrote this letter; now, why were you “trying to thwart the schemes of his ene¬ 
mies,” if you believed him to be corrupt.—A. I had not come to the conclusion that he was 
corrupt. I had begun to suspect him, but I was not convinced of it. 

Q. You did not intimate in this letter that you suspected him.—A. No, sir. 

Q. Was not impeachment one of the schemes of his enemies which you had in your 
mind.—A. No, sir; I did not think of that. 

Q. Did you not say that you had at that time begun to think of that.—A. I was asked 
to take short-hand notes in his court. They wanted to have a record of the way in which 
he spoke to and treated the members of the bar and witnesses; his roughness on the bench 
was the town talk. 

Q. I understood you to say that this subject of impeachment had been talked of previous 
to this time.—A. I understood, since I got into this prosecution business, that they wanted 
that testimony for more purposes than I was aware of. My understanding when they asked 
me to report these proceedings, was- 

Q. I understood you to state distinctly that the subject of impeachment had begun to be 
agitated at the time you were called upon to report.—A. Yes ; but I understood that impeach¬ 
ment was agitated then on account of Judge Busteed’s manners and bearing towards the 
lawyers practicing in his court, and towards witnesses; but I had no suspicion of what I 
now call his actual corruption, until the Stanwood case was put into the paper ; and then I 
began to hear talk of other things, and these originated with his enemies, (if you call them 
such,) in bringing along these proceedings. But in the beginning, and up to the time that 
letter was written, I understood the proceedings were with the object of removing him from 
the bench for the way in which he treated the bar and witnesses. 

Q. You did not, then, understand that they charged him with having used his office to 
prosecute these cotton cases and to divide the fees.—A. No; I did not come into the knowl¬ 
edge of these things until I began to feel aggrieved towards him. 

Q. You have felt, since the judge insulted the negroes, a very strong hostility towards 
him.—A. It was rather a distrust than hostility of mind I felt towards the judge. I wanted 
him kept in the party if possible. But at the time of the convention he had outraged us 
there. 

Q. Had you not feelings of strong political hostility towards him.—A. O, no; I never 
had. I was rather disposed to help him politically if he could be kept in the party. All my 
talk was for that—to keep him along in the party. 

Q. Did you procure Judge Kelley to present these charges against him in the House of 
Representatives.—A. Yes, sir. 

By Mr. Semple : 

Q. You spoke of your vote in the republican convention; did you vote “ay ” or “no” 
upon the question of keeping Judge Busteed out.—A. I did not vote at all. 

By Mr. Eldridge : 

Q. Had you any communication with Judge Kelley before you asked him to present these 
charges on the subject of the impeachment of Judge Busteed.—A. I had talked with him 
about it. I had brought him the charges to read. 

Q. Did you talk with him about it when you met him in Alabama.—A. I do not remem¬ 
ber whether I did or not. 

Q. Did you see him in Alabama.—A. Yes; he staid at my house when he was in Ala¬ 
bama. But he came there to make political addresses, and he was very much excited with 
his trouble in Mobile, from which he had just escaped. His stay was very short, and most 
of the time he was out doors, calling upou the governor and other officials. I carried him 
around. I had little or no private conversation with him. 

Q. Did you talk with him about Judge Busteed being a corrupt judge.—A. I do not recol¬ 
lect that I did. 

Q. Did you visit Judge Busteed in company with Judge Kelley.—A. I did not. 

Q. Judge Busteed was there at the time Judge Kelley was, was he not.—A. I think not. 
I do not remember. 

Q. You heard this petition read and the names of the lawyers signed to it; does that 
include a majority of the lawyers in Montgomery.—A. I do not know how many there are. 

I presume it does. v , , 

Judge Busteed objected to questioning the witness upon this point, remarking that tie 
would rather take Major Semple’s statement, and that he would be very glad to have him 
nidfkc it 

Mr. Semple said he would make the statement with a great deal of pleasure. He thought 
there were between 40 and 50 practicing lawyers in the city of Montgomery, and there were 
about 18 upou this paper and 16 on the other. 

14 B 



210 


By Mr. Churchill: 

Q Were you in the habit of corresponding with Judge Kelley for the last few years, and 
of furnishing him information with regard to the state of affairs in Alabama.—A. Our cor¬ 
respondence was personal. 

Q. Have you furnished him information with regard to the state of affairs there since you 
•went to Alabama.—A. I do not recollect ever writing him a letter as to the condition ot 
things. Letters have passed between Judge Kelley and myself, relating more to our per¬ 
sonal relations than to political affairs. 

Q. You and Judge Kelley are very strong friends.—A. Yes; and w T e have been a great 
many years, at times when we were strong political enemies. I do not remember having 
written him any letter setting forth the condition of things in Alabama, beyond a casual 
remark in reference to particular localities. I think I understand the kind of letters you 
speak of—such as are written to members of Congress giving them information to base their 
speeches on. 

Q. No; I refer to letters giving him facts in regard to the condition of localities and the 
state of things there. Have you been in the habit of writing such letters to Judge Kelley.— 
A. No ; I have not written such letters. I have frequently had conversations with him 
when I have seen him. The character of the correspondence has been personal. 

Friday, January 22, 1869. 

John H. Garner, of Mobile, sworn and examined. 

By Mr. Smith : 

Question. Did you, together with Price Williams, have an interest in 227 bales of cotton, 
or in 454 bales that were seized by the court as a part of the cargo saved from the steamer 
Natchez ; if so, in how many bales did you have an interest, and in whose name did it stand.— 
Answer. I do not know anything about the 454 bales. I had an interest with Price Wil¬ 
liams, Daniel McNeil, and other parties in a lot of 200 and some odd bales of cotton that 
were saved from the Natchez. 

Q. Was it 227 bales.—A. I think it w r as. 

Q. In how many of the bales that were saved from the Natchez did you have an interest.— 
A. I cannot recollect, from the fact that I was in New York the time the cotton was wrecked, 
but I think it w r as either 17 or 27 bales which belonged to the firm of which I was a member. 

Q. Well, after the 454 bales were sold, what was your pecuniary interest in the residuum ; 
I mean the interest of yourself, Price Williams, and McNeil.—A. We got about $3,000. 

Q. Whom did you employ to get the money, and what was your contract with him for 
getting it.—A. We had Judge John A. Campbell and Mr. Taylor as our attorneys in the case. 

Q. Did you employ any one else.—A. Yes; we employed Mr. Andrews. 

Q. Was it Rufus Andrews.—A. I am not certain as to his name; I think so. It w r as the 
lawyer Andrews. 

Q. How much money did you agree to give him.—A. We agreed to give him oue-half of 
this residuum of about $3,000, to get the money. 

Q. When was it that you employed him.—A. I cannot tell you the precise date. It w T as 
about May, 1867. 

Q. Did you have any further trouble wuth the case.—A. No, sir. 

Q. Did you have any trial about it.—A. No, sir; I do not think there was any trial. 

Q. Who attended to the getting of the money in court, and the settlement of the matter— 
you, or one of the.other parties.—A. Daniel McNeil, who was the financial agent of the party 
in interest, the company, and Price Williams. I knew nothing about it. 

Q. The cotton stood in the name of Price Williams.—A. No ; I do not know how it stood 
in court. McNeil was the financial agent of the party in interest; and he was the party 
with whom the settlement was made. 

Q. Was not this 227 bales the same cotton which you had recovered from the libel against 
the vessel which had been filed on the ground that it was wrongfully taken.—A. Yes, it was. 

By Mr. Eldiudge : 

Q. How r long had you been prosecuting your claim in court by the attorneys whom you 
first employed, before you employed Andrews.—A. About three months. It was longer than 
that. Really, I cannot tell you exactly how long. I think the Natchez was wuecked on the 
6th of March, 1867. 

Q. Was it in 1867 or 1866.—A. Really, I cannot say. I think it was in 1866. 

Q. Have you any memorandum with you by which you could determine.—A. I have 
memoranda; but they are not with me. 

Q. Well, about how long do you think it was that you prosecuted your efforts through 
the attorneys you first employed, before Andrews w T as employed.—A. I suppose it was two 
or three months. It may have been even more. 

Q. Was it before the cotton was wrecked on the steamer Natchez.—A. O, yes ; perhaps it 
was longer than three months; I cannot say certainly. The cotton was held in abeyance 
from us in the interior before we got it to Mobile. 


211 


By Mr. Woodbridge: 

Q. Who employed Andrews.—A. Price Williams, J. H Garner, and Daniel McNeil. 

Q. Did you ever have an interview with him yourself—A. Yes. 

Q. How long after he was employed was it before you got your money.—A. Some three, 
four, or five months ; three months, I suppose. 

Q. After Andrews was employed.—A. Yes. 

By Mr. Churchill : 

Q. Then he was about as long about it, so far as your recollection extends, as your pre¬ 
vious attorneys had been.—A. Yes. 

By Mr. Eldridge: 

Q. What led you to employ Andrews, in addition to the attorneys you had already 
employed.—A. We employed Andrews at the instance of Price Williams and Daniel 
McNeil. 

Q. Were Price Williams or Daniel McNeil, either of them, lawyers.—A. No; they were 
the party in interest. 

Q. Did you have a personal interview with Andrews in reference to retaining him in your 
service to get this money.—A. I did. 

Q. Can you tell when that was.—A. The interview I had with Andrews was in May, 1867. 
The wreck was in March, 1866. 

Q. March, 1866; and the first interview you had with Andrews was in May, 1867.—A. 
Yes; on the 6th of May, 1867, according to my memorandum. 

Q. Now, how long had your attorneys who were first employed been engaged in their 
efforts to get your money.—A. They had been at it all the while from the time of the wreck. 

Q. You say there was no trouble about it.—A. The underwriters in London, or on the 
other side, paid us for the cotton insured ; and it was only this residuary interest we were 
trying to get. 

Q. Were your attorneys, Campbell and Taylor, engaged in their efforts to get this residuum 
for you, from the 6th of March, 1866.—A. Yes, they were ; they were our open attorneys. 

Q. What effort had they made to get it.—A. Well, they said the salvors or underwriters 
refused to pay us; that what was due us was held in common as a common fund ; and the 
result was that they could not get it. 

Q. Did they make an application to the court for it.—A. Really, I cannot tell whether 
they did or not. 1 think they did. 

Q. You do not know whether they did.—A. I do not. 

Q. When you employed Andrews, you say you did it at the suggestion of Williams and 
McNeil.—A. Yes; and John T. Taylor. 

Q. He was one of your lawyers ; now, what was the real object of employing Andrews.— 
A. My object was to get our money. 

Q. Did you, in your communications with Andrews, give him any reason why you 
had employed him after these others.—A. I did not. 

Q. Did lie ever give you any assurance that he could get the money for you, or not.—A. 
He did not. 

Q. You offered him one-lialf of the residuary interest of whatever he could get-—A. Yes. 

Q. Did he promise to get it for you.—A. Yes. 

Q. Did he make any application to the court.—A. Not that I know of. 

Q. Any application, I mean, for an order of court.—A. Not that I know of. 

Q. Did he get the money for you without an order of the court.—A. No. I do not know 
whether it came through the salvors or not. But Mr. Secor made a dividend to us, and we 
got our portion. 

Q. Who is Secor.—A. Secor was the agent for the underwriters. 

Q. Who gave you your share of the residuum.—A. The very man I speak of now, Mr. 
Secor. 

Q. Did you have anything to do with Andrews in getting the money.—A. Not that I 
know of. 

Q. Did you have any communication with Andrews after the money was obtained.—A. 
I never saw Andrews afterwards. 

Q. Do you know that Andrews ever got any portion of it —A. I know that he did not. 

Q. How do you know that he did not.—A. Because I have the money ; $1,098 and some 
cents was allotted to the company, and $1,098 and some cents went to Andrews, which was 
his fee ; and I say to you, gentlemen of the committee, that that money was until within a 
few days ago in the hands of Daniel McNeil, our financial agent, who has kept it until it 
should be called for by Andrews, and we have, within the last ten days or two weeks, made 
a distribution of it. 

Q. Then Andrews never called for it.—A. No. 

Q. Have you ever had any settlement with him.—A. No. 

Q. Do you know whether any of your firm has.—A. I know that they have not, because 
if a settlement had been had I should have known something of it. 

Q. Now, why has not Andrews’s share been paid to him.—A. Because he has never called 
for it. 


212 


Q. Is it held subject to his order.—A. Yes. 

Q How long since Secor paid the money to you.—A. The money was paid in May, 1867, 
and this $1,098 was, by my order, left in the hands of Daniel McNeil, and by him deposited 
in the Southern Bank, payable to the order of Andrews. Several days before I left Mobile 
this fund was divided between the parties which composed our firm, with the understanding 
that if Andrews called for it we would each pay back the shares we had respectively received. 

Q. Was $1,098 one-half of the residuum. — A. The half the residuum I think was $1,098 24. 

Q. Did you ever have any communication with Judge Busteed about this money—A. 
Never on earth. 

Q. Did you ever have any communication with the officers of his court about it.—A. No. 

Q. Did you ever have any communication with Sec<»r about this money when he paid it 
over.—A. Not that I recollect of; Secor paid it into the hands of Daniel McNeil. Secor was 
the agent for the underwriters, and McNeil was the party who made the settlement with him. 

Q. Did you ever have any communication with Andrews, or any person representing him, 
with reference to Andrews’s share of the residuum.—A. Well, on one occasion I requested Price 
Williams to write to Andrews to get his share of the mouey, and Williams said, “I do not 
know where Andrews lives ; I will see him in New York.” The substance of what I say on 
this point is that this $1,098 was appropriated to Andrews as his fee when the amount was 
received, and it stood so appropriated until the last ten days or two weeks. Within that 
time our firm have divided the money between ourselves, and we hold ourselves liable to pay, 
and expect ito pay, the money to Andrews when it is called for. 

Q. You say that this money was deposited to Andrews’s credit in the Southern Bank.—A. 
That is what McNeil said. 

Q. If that was so, how did you get the money for distribution.—A. I do not know. That 
was a matter for McNeil to attend to. He said it was placed in bank to the credit of Andrews. 

Q. When you divided this up, who paid you your share.—A. Daniel McNeil. 

Q. He manipulated it—A. Yes ; he was the agent. 

Q. Do you know whether Andrews knew anything of this.—A. I do not know. 

Q. Do you know of any fact that shows Judge Busteed has, in his official character as 
judge, ever acted corruptly or dishonestly, or received a bribe.—A. No; I do not know. 

By Mr. Churchill : 

Q. Do you know what was done by Andrews for the purpose of obtaining his half of the 
residuum.—A. I do not. 

Q. Do you know that anything was done by him by the way of earning it.—A. I do not. 

Q. When was the amount of the residuum first ascertained.—A. The records (which 
Colonel Smith has) will show. I cannot tell the precise date. 

Q. How long after the commencement of the proceeding in March, 1866; was it a con¬ 
siderable length of time.—A. I say that it was in Mayor June, 1867, that this dividend was 
declared—that the residuum of $2,000 and odd was declared by the court. 

By Mr. Eldridge : 

Q. How long was that after you had employed Andrew’s to take charge of the matter.— 
A. I believe it was the same spring. 

Q. Within a month or two.—A. Yes ; it was on the 6th of May, 1867, or the 26th of May— 
I think it was the 26th of May—when I learned that they had given us the dividend. 

Q. Will you state as nearly as you can when it was you employed Andrews.—A. It was 
during the session of the court, (and Colonel Smith can tell when that w r as;) it w r as about 
the 20th of May, 1867, that we employed Andiews, but we did not get the residuum until 
June. 

Q. Then you got your money within a month or less after you had employed him.—A. Yes. 

Q. Now, then, wdiat. fact did you date the 6th of May.—A. It was on the 6th or the 26th 
of May that Colonel Andrew's and myself agreed, and I employed him. 

Q. It may have been on the 26th of May, then, which, as the court convenes on the 4th 
Monday of May, would have been about six days after the court commenced.—A. Yes. 

Q. It was a very short time after Andrews w r as employed that you got your money.—A. 
We got it in June. 

Q. What time in June.—A. I caunot tell you from recollection. My books would show, 
because there was an entry made of it in them. But they are in Mobile. I think it was on 
the 6th or 16th of June following. 

Q. Then it was not two or three months after you employed Andrews that you got your 
money, as you said a little while ago.—A. No; I never said so. I said it was some two 
or three months after we employed Andrews before we got a hearing. 

Q. When you employed Andrews did you discharge your other counsel.—A. We dis¬ 
charged them so far as to give them a fee of $5,000. 

Q. Was Andrews associated with them, or did he have the case in his sole charge.—A. No ; 
they had nothing to do with it. When John A. Campbell and Taylor were paid $5,000, this 
fee embraced other proceedings in admiralty. 

Q. Nor did you, in point ot tact, know anything whether the money was got from Secor, 
or how it was decided—did you know anything more than that, after that, McNeil paid you 
$1,098 24.—A. No; that is all. 


213 


Q. Then, in what you have said about what was deposited in bank, and what you got 
from Secor, after the employment of Andrews, have you spoken of your own personal knowl¬ 
edge.—A. No, not at all. McNeil was the agent of the firm, and I was one of the parties 
in interest, and I simply received my share of the dividend. 

By Mr. Churchill: 

Q. When you employed Andrews did you consider that your counsel were neglecting the 
case, or had substantially abandoned it.—A. That question might be answered by Price 
Williams. We employed John A. Campbell, and I did not think—in fact, I know—that Mr. 
Campbell was not doing us justice, and I told him so. I told him that he ought to have 
pressed the case; but, said he, ‘ ‘ my case is accomplished. I have done all I undertook to do, 
which was to get the cotton released from libel, and we paid him and his associate, Mr. Tay¬ 
lor, their fee of $5,000—$2,000 immediately after the payment by the underwriters, which 
was very promptly made as soon as the cotton was wrecked; and the balance of the fee, 
$3,000, was paid them at a subsequent time. 

Q. From the time you paid them the $2,000 until you paid the balance of their fee, had 
there been anything done by your counsel in the matter —A. Nothing. 

Q. Bid you attend personally to the matter, or did Frank Williams have the management 
of it.—A. Williams had the principal management of these things. 

Q. Was the $5,000 paid to Campbell, or to Campbell and Taylor.—A. It was paid to them 
jointly. 

Q. Who always had the interviews with Taylor of a professional character, you or Frank 
Williams.—A. As I said before, the business was managed principally by Williams. I went 
to John A. Campbell—and it was at the instance of Taylor that I did so—and I made a con¬ 
ditional agreement to give them a fee of $5,000, if they would succeed in gaining our case. 

Q. Was there any further agreement with Andrews than that you were to give him one- 
half of the money if he could get it.—A. That is all. 

By Judge Busteed: 

Q. How long have you lived in Mobile.—A. Twenty-five years. 

Q. Have you been much in the district court of the United States since Judge Busteed 
has been there.—A. No ; 1 have not. 

Q. Judge Busteed is an entire stranger to you.—A. I know the judge by sight. 

Q. You never visited his room, or made him presents of wines and liquors, did you.—A. 
As I said, I know Judge Busteed by sight; but as to ever having a personal acquaintance, 
or having been introduced to him, I never was. 

(This course of questions objected to by the committee, and waived by Judge Busteed.) 

Washington, January 22, 18(59. 

William N. Thompson sworn and examined. 

By Mr. Smith : 

Question. Are you a member of the firm of Nunn & Thompson, of Mobile.—Answer. Yes, 
sir. 

Q. To whom did the 239 bales of cotton referred to in page 13, charge 17, of the pamphlet 
charges against Judge Busteed, belong; and how did it come into your control.—A. It be¬ 
longed to a manufacturing establishment at Autaugaville, Alabama. It was consigned to us as 
commission merchants in Mobile. All the cotton shipped by that establishment was shipped 
to us at Mobile. 

Q Was that cotton seized in the district court of the United States at Montgomery.—A. 
Yes, it was. 

Q State whether it had before been seized in the Montgomery court.—A. Yes. 

Q. In a lot of how many bales.—A. The libel said 60U bales ; and it had been stipulated 
for by my partner, who was agent for the factory. 

Q. And the cotton was turned back to you.—A. Yes. 

Q. Was that the cotton that came to Mobile.—A. Yes. 

Q. What took place alter getting to Mobile.—A. After it was got into Mobile the cotton 
agent of the Treasury Department notified us to hold the cotton subject to his order. 

Q. Wh at took place in reference to that.—A. We made some proofs in regard to the cot¬ 
ton, and he afterwards released the cotton to us. 

Q When was the decision made releasing it to you.—A. The papers were sent to Wash¬ 
ington, and the Secretary of the Treasury ordered the release upon the condition of stipula¬ 
tion that we would not claim any damages which we had received on account of the seizure. 

Q. You gave the bond required.—A. Yes. 

Q. Well, after Mr. Tomeny, the treasury agent, had released it, in compliance with the 
order, what was the reason you did not get it.—A. It was seized by the United States 
marshal, and we could not get it. 

Q. Was there any case pending in the United States district court in regard to it; and it so, 
state what took place in court. Were you present in court.—A. Yes, I was present in court. 

Q. Was there any motion made to allow you to take the cotton under a stipulation of the 
court; and if so, state what took place.—A. There was a motion made to allow us to stipu¬ 
late for the cotton ; but the motion was refused. 


214 


Q. State whether your counsel protested or not. 

(Question objected to by Judge Bnsteed, and waived.) 

Q. Do you remember any reasons assigned by the judge for refusing to allow you to stipu¬ 
late for the cotton.—A. I recollect Colonel Herndon told me I had better go and find a wit¬ 
ness to prove the condition of the cotton. Mr. Hardy was examined, and he said that the 
cotton was in a perishing condition; we examined no witness, and had no opportunity to 
before the judge gave the order. 

Q. This matter arose upon a motion to allow you to stipulate for the cotton.—A. ITes ; that 
is my understanding; we wanted to give bond for the cotton, and you produced the order 
of the Secretary of the Treasury. The judge put up this Hardy to show that it ought to be 
sold, and decided that it should be sold without allowing us opportunity to bring forward 
witnesses to show that the cotton was in good condition. 

Q. Will you state whether, when you saw the question of stipulation for the cotton was 
coming up, you went to look for a witness to show its condition.—A. I did; we did not 
have witnesses sworn; I think Hardy was sworn, and I think the judge made an order of 
sale; I do not recollect that we put any witness upon the stand; I went to hunt up one. 

Q. |Did you offer one.—A. I do not recollect whether he was offered. 

Q. Did lie state any facts showing the perishing condition of the cotton.—A. I cannot 
recollect exactly what Mr. Hardy did say, any more than that it was in a perishing condi¬ 
tion ; he may have been more particular, and may not have used that precise word, but that 
is my idea of it. 

Q. What was the true condition of the cotton.—A. I really thought that the cotton was in 
good order. 

Q. Was the cotton that was sold your cotton, or was it not.—A. I cannot say ; the pack¬ 
ages were not like our packages—not like the packages which we had received and stored 
in warehouses originally. We had taken samples of all of our cotton as it arrived, and had 
them in our office, and when these 239 bales of cotton were offered for sale, I went over and 
saw the cotton ; I saw the samples that were exposed, and I went over a good deal of it, and 
I do not think that it compared at all with our samples. 

Q. Were your bales light or heavy.—A. They were heavy ; our bales averaged something 
over 500 pounds. 

Q. What sort of bales were those that were sold.—A. I did not see any of them weighed ; 
they appeared to be light. 

Q. How light.—A. Fotrr hundred pounds, 450 pounds, 375 pounds, and along there; I 
cannot state positively what was the identical weight of any one bale. 

By Mr. Woodbridge: 

Q. What is the average weight of a bale of cotton, generally.—A. About 500 pounds. 

By Mr. Smith : 

Q. What was the weight of this cotton that was sold.—A. I cannot state exactly ; I think 
it was much lighter. I have no idea that the cotton sold would average 500 pounds to the 
bale. Perhaps it would average 425 pounds; but that is a mere guess. 

Q. State whether or not you had experts to go down and sample this cotton that was 
sold.—A. I had Mr. McCaw, whose business it was to sample and class cotton. He looked 
over our cotton, aud over the samples 'of the cotton that was sold. There was a great deal 
of difference in the samples. Our cotton was a pretty good lot of cotton, and the cotton 
that was sold was a very sorry lot. 

Q. How was the bagging on this cotton, compared with the bagging on your cotton.—A. 
The bagging on this cotton looked newer than that on our cotton. 

Q. When did you discover that your cotton was gone and other cotton substituted in its 
place; was it before or after the order of sale was made.—A. 1 do not recollect now whether 
I went up the day before or a day or two before, or the morning of the sale, with two friends, 
who looked over the cotton with me and talked about it. 

Q, Did this examination of the samples take place after the order of sale.—A. The exam 
ination took place after the sale. When the cotton was sold I made an effort to get samples 
from the purchasers of the cotton through other parties. They promised to let us have them, 
but after the cotton was knocked off the party who had bought it would not allow us to 
have the samples. The cotton was sent to Mr. McCaw to class, and he told me that was 
the cotton that was sold. 

By Mr. Eldridge : 

Q. Who purchased the cotton.—A. I think it was a gentleman of the name of L. E. 
Smith who purchased it. 

By Mr. SMITH: 

Q. When you went and had the cotton sampled to see whether or not it was yours, was 
that before or after the cotton was sold.—A. I did not have the cotton sampled at all. The 
samples were exposed there before the cotton was sold, and then the samples were sent to 
McCaw. I understood they were there, and I got Mr. McCaw to look at them. 

Q. Did you or Mr. Nunn, your partner, take five or six down there and have the samples 
compared with the cotton before the sale.—A. No, sir; it was after the sale, according to 
my recollection. 


215 


Q. Can you recollect liow that examination came to be made.—A. I do not recollect, at 
this moment, more than that when I saw the cotton I did not believe it was our cotton, and 
I wanted the samples, as I thought they might be of use to us. I failed to get the samples. 

Q. Do you recollect whether any of your counsel suggested the importance of examining, 
to see whether that was your cotton, after the order of sale was made.—A. I do not recollect 
at this moment, but I recollect looking at and examining the cotton. 

By Mr. Eldridge : 

Q. On the whole, what conclusion did you come as to whether this cotton that was sold 
was or was not the cotton that you call yours. — A. I do not believe it was. From the sam¬ 
ples and from what I could see and learn of it I do not believe it was our cotton. 

Q. Do you now believe that it was yours.—A. Very little part of it, if any. It was a 
different class of cotton. 

Q. Was there more than one bale of it that you now believe was yours.—A. I cannot 
state how many bales ; possibly there may have been a dozen or 20 or 30 of them ours. I 
was not very particular about noting each bale that possibly might have constituted our lot 
of cotton. 

By Mr. Smith : 

Q. State whether you or Mr. Nunn took parties down there to make an examination of 
the cotton.—A. It was myself who looked at the cotton. 

By Mr. Eldridge: 

Q. What is the mode of sampling cotton ; if a sample is drawn and laid aside, how do you 
know that that sample belongs to any particular bale.—A. We cannot tell positively, I think. 

Q. Do you number the samples with the bales.—A. I do not think it is a rule to number, 
the samples. Some merchants may do it, and some not. 

Q. When you kept samples of cotton, how did you know that any sample applied to any 
particular bale.—A. When we get a consignment of, say, 20 bales of cotton from a party, 
our sampler goes and draws a sample from each bale. We do not keep each sample, each 
number separate to itself, unless the party consigning the cotton requests us to do so. 

Q. How are you able to say that the samples taken of the cotton when you received it com¬ 
pared with the samples which you afterwards drew from this lot of cotton that was sold.—A 
Mr. McCaw gave his opinion as to the class of the whole 239 bales of cotton. For instance, 
in a lot of luO bales, there would be 50 bales of middling and 50 bales of good ordinary, or 
low middling; the whole J00 bales would then class low middling. 

Q. Then there is no means of identifying the cotton by the samples.—A. No, sir; I do not 
think there is. 

By Mr. Smith : 

Q. Do you know R. D. Price.—A. Yes. 

Q. Who took him to the Verona warehouse to examine the lot of cotton that was to be sold 
by the United States marshal.—A. I reckon I did. 

Q. Was that before or after the cotton was sold.—A. It must have been before, for I was 
not up there after it was sold. 

Q. Who brought Charles Blackledge to examine it.—A. He was the sampler who sampled 
all our cotton; 1 must have taken him up ; I do not recollect. 

Q. Who took up Mr. States G. Davis.—A. I do not recollect that party. 

Q. Who took up John Johnson, jr.—A. He was clerk at the warehouse. 

Q. Who took up John Jackson and John Dooley.—A. I do not recollect those parties. 

Q. Who took up Hugh McCormick.—A. I do uot know whether I had him up there or not. 

Q. This examination was made by those parties before the sale.—A. Yes, sir; I think it 
was. I would not say that Mr. McCaw examined the cotton before the sale. McCaw is a 
broker and classer of cotton, and the samples were sent to his office. I got him to class that 
and to class my cotton also with it. I think that Mr. McCaw classed it after the sale. 

Q. These other parties examined it before the sale.—A. Yes ; I think several of them did. 

Q. What examination was made.—A. We looked about over the cotton, and pulled out 
from a good many bales. We did not sample it all regularly. 

Q. You did not sample it with a gimlet.—A. No, sir. 

Q. How long was that before the sale.—A. I recollect doing it the morning of the sale 

particularly. . 

Q. Who is R. D. Price.—A. He is a cotton weigher. He is the man who weighed the 
cotton for us when it came down the river. He kept the weights in his book. 

Q. Who is Charles Blackledge.—A. He is a sampler. He sampled all this cotton ot ours 
when it first arrived, and he went to re-examine it. . 

Q. Do you say you cannot tell from the samples of cotton whether or not it is the same 
cotton as is contained in the bales.—A. I could not tell whether the sample was drawn from 
out any particular bale to save my life. 

By Mr. Woodbridge: 

Q. How is cotton sold.—A. By the sample. The broker takes these samples and com¬ 
pares them, and if the cotton does not correspond with the samples, he rejects it. 


Q. How do you get out these samples.—A. They cut across the bagging, and, taking a 
little from the top, pull out a large handful. 

Q. These 231) bales of cotton were sampled after its arrival.—A. It was. 

Q. Did you have a sample from each bale.—A. Yes, sir ; I reckon so. 

Q. When you went in to examine this cotton that was sold, how many bales did you 

sample then.—A. I did not cut into any bales; the samples of that cotton were exhibited 
there—the samples by which the cotton was sold. 

Q. Were there samples from each bale.—A. I do not know; I pulled out a little from a 
good many bales, but I did not compare it with the samples on which the cotton was sold. 
I thought, however, that it might be sampled right. 

Q. Did you make any objection to the sale of that cotton as not being your cotton.—A. We 

tried to resist the order of sale before the judge; that was all we could do. We did not 

make any further objection. 

Q. That was the time that you had only this one witness that you spoke of.—A. That was 
when we were going to introduce a witness before the judge, to show that the cotton was not 
perishable. 

Q. Why did not the witness appear; would not the judge receive him.—A. It strikes me 
that the judge granted the order without hearing my lawyer; I do not recollect distinctly. 

Q. Did the lawyer state that he had a witness whom he wanted to produce, and that 
he would be there shortly.—A. He told me to go and get the witness, which I did. 

By Mr. Eldridge : 

Q. Whom did you get.—A. Mr. Johnson, who was a clerk in the warehouse. 

Q. Was he a judge of cotton.—A. Yes, sir, he was a clerk in the warehouse. He had to 
give receipts, and had to know about the condition of the cotton. 

* Q. What would he have sworn to.—A. He said the cotton was in good order. 

Q. But you did not know whether he was offered or not.—A. No, sir, I do not recollect. 
I do not think he was. 

Q. Do you know whether the decision of the judge was given before he got there.—A. I 
would not be positive about that. 

By Mr. Smith : 

Q. Is there any practical difficulty in determining whether cotton holds out according to 
the sample or not. Does not every seller of cotton transfer the sample; and does not the 
buyer have three days to determine, by re-sampling the cotton and comparing it with the 
samples on which he bought, whether it holds out.—A. Yes, sir; the buyer re-samples the 
cotton always. 

Q. When I go to buy cotton, where do I find the evidence of what sort of cotton it is.—A. 
In the samples that are laid on the table. 

Q. Where are those samples sent, when the cotton is sold.—A. They are sent to the man 
who buys the cotton. 

By Mr. Eldridge : 

Q. It is bought and sold altogether by sample.—A. Altogether. 

Q. What do you call “going through cotton.”—A. The broker goes into the cotton and 
gets out a sample to compare it with the sample on which he has bought, and to see whether 
the cotton holds out. He rejects the bales that do not hold out. 

By Mr. Smith : 

Q. Then, is there any practical difficulty in determining whether the cotton compares with 
the samples on which it is sold.—A. I think it can be very easily determined. 

Q. Are the samplers professional men, who follow that business.—A. Yes, sir; that is 
their business. 

Q. The broker does not go himself and compare it, does he.—A. Sometimes the broker is 
both broker and sampler. 

Q. Is there any difficulty whatever, if I sell you 100 bales of cotton and send you the 
samples of it, to compare it with the samples, and determine whether it holds out.—A. You 
can tell very easily whether it is the same lot. 

Q. Is not that the course which every bale of cotton goes through, in Mobile. —A. Yes. 
By Mr. Woodrridge: 

Q. Can you swear that this cotton that was sold was not your original 239 bales of cot¬ 
ton.—A. I do not think it was. Some of it may have been. My opinion was that the cotton 
had been changed and manipulated, the best of it taken out and perhaps the sorrier part of 
it let remain. I think that the bales had been made lighter and all the best bales exchanged 
for a sorrier quality. 

By Mr. Churchill : 

Q. Had the contents of the bales been in some instances removed.—A. Yes, sir ; parts of 
a good many bales had been taken out and the bales made smaller, and nearly all the best 
bales, I think, were changed. 



217 


Bj Mr. Woodbridge: 

Q. Supposing 75 pounds of cotton had been taken out of a bale, would you not at once, 
by looking at the bale, see that it had been manipulated and cotton taken out.—A. You 
would not discover it by merely looking at it. 

By Mr. Eldridge : 

Q. What was the difference in the market value of the cotton which you call yours and 
that which was sold that day.—A. I think our cotton was actually worth double as much as 
the cotton sold that day. 

Q. What do you think your cotton was worth that day.—A. I think that at the very lowest 
calculation it was worth $150 a bale. That would be less than I really think it was worth. 

Q. And you think the cotton sold that day was not worth half that sum.—A. I think that, 
perhaps, the cotton sold that day sold for about its real value. It sold at $75 a bale. 

Q. Would the cotton that you call yours have sold that day in the same market, in the 
same manner, at $150 a bale.—A. If sold in the same way I do not know what it would 
have sold for, unless the parties purchasing had some guarantee of the weight. That cotton 
was sold at so much per bale, without regard to weight. The usual way to buy cotton is by 
weight. 

Q. Is it your opinion that the cotton which you owned would have sold for twice as much 
as that on that day.—A. That is my opinion. 

Q. Do you know of any act of Judge Busteed’s, or any fact, that tends to show that 
Judge Busteed acted corruptly as a judge, or that he received any bribes, as a judge.—A. I 
do not know that Judge Busteed received any bribes. I thought the judge did wrong when 
he would not let us stipulate for the cotton. 

Q. Have you any reason to believe that the judge acted corruptly in refusing that.—A. I 
think that when we exhibited an order for the release of the cotton from the Secretary of the 
Treasury, and when the judge granted the order to sell it, in the face of that release, and 
when we wanted to stipulate for it, it was wrong on his part. 

Q. Do you know that his attention was called to the order of release.—A. Yes, sir. 

Q. Do you know of his saj'ing anything in relation to it when his attention was called to 
it.—A. I heard the judge make some remark. He said, when the order was produced, that 
the Secretary of the Treasury had better attend to his greenbacks. I recollect that. 

Q State all that he said on that subject as nearly as you can recollect it.—A. He said 
something in relation to the President; that he would not allow the President to influence 
him or his court—something like that. That is about the substance of it. 

Q. What was the manner of the judge when he made that statement. Was he good- 
natured, pleasant, and affable, or was he excited and angry.—A. I thought the judge exhib¬ 
ited a little temper and seemed to be a little irritated at it. 

Q. Do you know any fact tending to show that the judge himself had any personal interest 
in having that cotton sold.—A. Nothing more than I have stated. 

Q. Did you ever have any interviews with the judge, yourself, about this cotton.—A. I 
never spoke to him in my life. 

Q. Are you an old resident of Alabama.—A. Yes, sir; I was born and raised in Alabama. 

Q. You know of no other facts on the subject except those you have stated.—A. Not that 
I recollect at present. 

By Judge Busteed: 

Q. Your lawyers told you you had a legal right to stipulate, did they not.—A. Yes, sir; I 
was advised that we had. 

Q. And that the judge had no legal right to refuse to allow you to stipulate.—A. The law¬ 
yers told us that we had a legal right to stipulate for the cotton. 

Q. Your sense that the judge had done what was wrong was derived from what your law¬ 
yers told you as to your legal rights, was it not.—A..No, sir; I do not think it was. 

Q. From what was it derived.—A. From your refusing to let us stipulate for the cotton, 
and your having the cotton sold in spite of the order for its release from the Secretary of the 
Treasury. 

Q. You thought the judge did wrong in granting the order to sell it.—A. Yes, sir. 

Q. At the time of that order did your attorneys tell you that they thought the judge was 
corrupt.—A. I do not know that they did. I do not recollect about that just at this time. 

Q. Who were your warehousemen when this cotton came to Mobile.—A. The cotton was 
warehoused in the Planters and Shippers’ press, down on the river. 

Q. When it was taken out of the Planters and Shippers’ press who took it.—A. The mar¬ 
shal. 

Q. Into what warehouse did he take it.—A. I do not know where he took it. 

Q. Do you know how long it remained in the warehouse after it was taken from the 
Planters and Shippers’ warehouse before its sale by the marshal.—A. I do not recollect. I 
never saw any of the cotton after it was taken away. 

Q. Was the sale advertised in the newspapers by the marshal.—A. I think there was a 
short notice of the sale. 

Q. Was there ample opportunity for the substitution of the cotton, in the warehouse, after 


218 


it was taken from the Planters and Shippers’ warehouse and before it was sold by the mar¬ 
shal.—A. Yes, sir; there might have been plenty of opportunities, I suppose. 

Q. Where, in point of fact, was this cotton actually sold.—A. It was sold at the Verona 
warehouse, about a mile above where we had it stored. 

By Mr. Eldridge : 

Q. Was it sold by auction.—A. Yes, sir. 

Q. By whom, as auctioneer.—A. By Mr. Hardy's sheriff, Jacob Wilson, I think. 

By Judge Busteed : 

Q. You were present at the sale.—A. I was present. 

Q. Was there any interference with the sale.—A. So far as the vendue, the auction of it, 
went, it seemed to be regular. 

By Mr. Eldridge : 

Q. Was there a fair opportunity for bidding.—A. Yes, sir ; anybody could have bid. 

Q. What number of persons attended the sale.—A. But very few. 

Q. Did you bid on the cotton.—A. No, sir. 

By Judge Busteed : 

Q. Were you ever examined before me —A. Never. 

Q. Was Mr. Nunn, your partner.—A. I do not know. 

Q. Have you been in my court in other cases.—A. I have been in court frequently where 
you presided. 

Q. Have you ever heard any witness complain of my abusing him.—A. I have heard wit¬ 
nesses make some complaints, but I do not recollect what the complaints were. I heard 
them speaking of your manner to them. 

Q. Do you know who they were.—A. I cannot state any particular name now. 

Q. Did you ever hear Mr. Secor speak about it.—A. Yes, sir; I have heard him talk 
about it. 

Q. Anybody else besides Mr. Secor.—A. I do not recollect any one else. 

Q. Did you know any of the jurors in the circuit court of the United States.—A. Yes, sir. 

Q. Have you ever heard them complain of any ill treatment at the hands of Judge Bus¬ 
teed.—A. I have heard some complaints made, but I cannot state them. 

Q. By jurors.—A. By some petty jurors. 

Q. As to what was the complaint; was it for not taking their excuses for not serving.—A. 
I cannot tell at this moment what the complaints were One complaint, I think, was about 
directing somewhat their verdicts ; I have heard that mentioned. 

Q. What did they say about that.—A. I cannot undertake to say. 

By Mr. Woodbridge : 

Q. Did your house own this cotton, or were you the middlemen.—A. My partner was 
the 'largest owner of most of it. It was owned by a factory in which my partner was much 
the largest owner. 

By Judge Busteed : 

Q. Was that cotton released by the Secretary of the Treasury on the ground that it 
belonged to a corporation.—A. I cannot state the identical ground ; that, perhaps, may have 
been the ground. 

Q. This cotton had been the subject of use, by subscription or otherwise, to the rebel 
government.—A. I do not know of that; it may or may not have been. 

Q. Did the Planters’factory subscribe to the rebel loan.—A. No, sir; the Planters’fac¬ 
tory bought this cotton. 

Q. Who raised the cotton.—A. It was raised by various parties in the neighborhood ; we 
bought it of Smith, Stoudenmiers, and a number of others. They were all stockholders, 
too, in the factory. I do not know that any of it was bought from the Confederate States ; 
if any of it was, it was only a small part. 

Q. Mr. Smith was engaged in the rebellion.—A. I believe so; he contributed his means to 
it, I suppose; he did not go to the war himself. 

Q. You, yourself, contributed of your means toward the service of the rebellion.—A. Yes, 
sir. 

Q. And so did Governor Parsons.—A. Yes, sir. 

Q. The contributions from the Planters’ factory were in the shape of goods made up from 
the raw cotton.—A. l r es, sir; the Planters’ factory sold the Confederate States goods made 
up from this cotton. 

By Mr. Eldridge : 

Q. Have you any fact within your knowledge which goes to show that any particular 
person or persons substituted this cotton that was sold for that which was yours, after it was 
seized by the marshal.—A. No, sir; I have no fact fixing it upon any person. Mr. Hardy 
took the cotton out of our possession, and that was the last we knew about it until we saw 
it offered for sale. 


219 


Q. You have no knowledge of any fact which would tend to show that any person or per¬ 
sons had anything to do with that exchange or substitution.—A. No, sir; 1 have not. 

By Mr. Churchill : 

Q. The only act wdiich passed under your personal observation, and which seemed to show 
anything wrong in the official conduct of the judge, was his refusal to allow you to take 
out this cotton on stipulation.—A. No, sir; there were other circumstances which influenced 
my mind to think that the judge had acted wrong. The cotton had been first seized by a 
treasury agent. We made application to Washington, and the Secretary of the Treasury 
released the cotton to us. That order of release was shown to the judge, and he would not 
entertain it at all, but gave an order for the sale of the cotton. 

Q. When was your application to stipulate; w as it before or after you received the order 
of release from the Secretary of the Treasury.—A. It w f as afterwards, I think. 

Q. Was the application opposed in court by counsel who represented the parties opposed 
to you.— A. I do not recollect that it was. 

By Judge Busteed : 

Q. At the time you made the application to stipulate and at the time the judge ordered the 
sale, had not the cotton been libelled in the district court of the United States.—A. Yes, sir; 
the cotton had been libelled. 

Q. On the part of the government.—A. Yes, sir. There was one thing which I intended 
to state, and which influenced my conclusion, that is, that the cotton had been first seized 
or libelled by the United States in the Montgomery district, and my partner, who w r as the 
agent, stipulated for the cotton there, and it w r as shipped to Mobile, where it was again 
seized. 

Q. The United States were claimants against you in that libel.—A. Yes, sir. 

Q. Who was the district attorney.—A. I hardly know who was acting; I think it was 
Mr. Worrall. 

By Mr. Churchill : 

Q. Did he represent the government on this application by your counsel.—A. I do not 
recollect. 

By Mr. Smith : 

Q. Is the factor’s office in itself a distinct office altogether from the warehouse, where the 
cotton is kept.—A. Yes, sir. 

Q. The w arehouseman is one man and the factor another.—A. Yes. 

Q. And the factor deposits his cotton wflth the warehouseman.—A. Yes. 

Q. The factor does not go to see whether his cotton is changed ; he merely sells it, and 
gives an order to the buyer.—A. That is the custom. 

Q. If the cotton is changed it is impossible, in the ordinary course of things, for the factor 
to know who changed it.—A. Yes. 

Q. That is an inquiry w r hich must be prosecuted through the warehouseman, is it not.— 
A. Yes, sir. 


Wednesday, January 22, 1869. 

Abner R. Storer sworn and examined. 

By Mr. Semple : 

Question. Where do you reside.—Answer. I reside at Lansingburg, Rensselaer county, 
New York. 

Q. Were you at one time deputy clerk ot E. C. Y. Blake, clerk of the district court of 
the United States for the middle district of Alabama.—A. I was. 

Q. When did you first become deputy clerk.—A. As near as I can recollect, on the 12th 
of June, J866. 

Q. How long did you continue to discharge the duties of that office.—A. Until about the 
26th of September, 1868. 

Q. State to the committee whether, during the time you were deputy clerk, Blake was 
absent from the office, leaving the office in your sole charge.—A. I went in on the 12th of 
June, 1866; Blake remained in the office until the 9th of July; he then left, and returned 
about the middle of November; he remained until the 2d or :3d of January, 1867; he left 
on the 2d or 3d of January, 1867, and did not return until the May term of 1868. He re¬ 
turned to the office the second day of the court at the May term of 1868; I remained with 
my family in Montgomery, after he returned at this time, about one w^eek, and went north 
with my family ; I arrived in Montgomery again on the 11th of July; he left sometime 
during the mouth of July, and I left there myself about the last of September or first of 

October. , , 

Q. Look at the letter which I lay before you, together with the envelope, and say whether 
it is in your handwriting, and by whose authority you gave the directions contained in that 
letter to the register in bankruptcy. 


220 


Witness took the letter and read, as follows, viz: 

“Montgomery, February 12, 1868. 

“Dear Sir: In future, petitions in bankruptcy will not be filed until the fifty dollars is 
deposited with the clerk, as required by law, and the clerk’s fees paid in advance or amply 
secured. Judge Busteed arrived here yesterday morning in quite a feeble condition, unable 
to attend to any business. 

“Yours, respectfully, 

“E. C. Y. BLAKE, 

. “ Cleric United States District Court. 

“John O. D. Smith, Esq., Opelika .” 


Q. Did you write that letter; and if so, by whose directions.—A. I wrote that letter by 
the direction of the judge. 

Q. Communicated to you personally.—A. Communicated to me personally. 

By Judge Busteed : 

Q. Did you write that letter by my direction.—A. I was told to write to Smith to that 
effect. 

By Mr. Woodbridge: 

Q. Who told you to do it.—A. The judge told me to do it. 

By Mr. Semple: 

Q. Did you write a similar letter to that to General Spencer.—A. I did. 

Q. By whose order did you write it.—A. By the order of Judge Busteed. 

Q. What was the date of the letter to General Spencer.—A. I think I wrote both letters 
the same day. 

Q. And by the same authority.—A. By the same authority. 

Q. Will you say whether the petitions which were filed by General Spencer in General 
Spencer’s district, after the writing of that letter which you have spoken of, were referred to 
him without the $50 being deposited, as required by the letter; and if so, when were they 
first referred—how soon after the writing of that letter.— A. They were referred to him, but 
when they were referred to him I cannot tell; I am unable to state. 

Q. By whose order did you refer the petitions to him without the money being first 
deposited. 

(Judge Busteed objected to the question, and it was waived.) 

Q. After that letter was written were the petitions referred, without the payment of the 
$50, by the order of any person to you ; and if so, by whose order.—A. The judge ordered 
me verbally to continue the reference of them to General Spencer. 

Q. Did he give you any orders with reference to referring them to John O. D. Smith.— 
A. Not any further orders. 

Q. Did you receive any orders from any person in reference to referring cases to John O. 
D. Smith ; and if so, from whom.—A. After Blake left Montgomery I received a letter from 
him telling me to refer petitions to Smith. 

By Mr. Woodbridge : 

Q. At what time was that.—A. He left the latter part of July, and, I think, in about a 
week or ten days I received the letter. 

Q. As near as you can recollect, how soon after this letter of February 13 was it that you 
referred cases to General Spencer without the payment of the $50.—A. General Spencer, I 
think, came down to Montgomery upon the receipt of that letter, or within a very few days 
afterwards; and within a day or two I had orders to forward the petitions. 

Q. Did he see the judge.—A. I could not say whether he saw him or not. 

Q. Was the judge in Montgomery.—A. The judge was in Montgomery, I think; no, I 
think he was down at Stanwood's. 

Q How far is that from Montgomery.—A. I was never there ; I am told it is about 20 
miles. 

Q. You say that a day or two after General Spencer called you received the orders to refer 
his petitions ; from whom did you receive those orders.—A. I think when the judge came up 
to Montgomery he sent for me and verbally told me to refer the petitions to General Spencer. 

Q. How long was that after General Spencer was at Montgomery—when he came down 
after receiving your letter of the 13th of February.—A. I think it was only a few days ; I 
am not quite positive as to the time. 

Q. You do not know that General Spencer had seen the judge.—A. I do not know. 

Q. Did the judge say anything about having seen General Spencer.—A. No, sir. 

By Mr. Semple : 

Q. Are you certain as to the time; may it not have been as late as the 1st of April, or 
about the 1st of April, that General Spencer was there.—A. I cannot speak positively as to 
that fact; I know it was not a great while after I wrote that letter. 


221 


By Mr. Woodbridge: 

Q. You have said that very soon after the writing of that letter General Spencer came down 
to Montgomery ; now certainly you can tell whether it was witbin a week.—A. Perhaps it 
was not within a week. 

Q. The question now asked is whether it may not have been as late as the 1st of April, 
which would be nearly two months.—A. It was between the J2th of February and the 1st 
of April; I know it was the first time General Spencer came to Montgomery after I wrote 
that letter. 

Q. The letter which you now have in your hand is the letter which was written by you.— 
A. Yes, sir. 

Q. It is signed with Blake’s name.—A. Yes, sir. 

By Mr. Churchill : 

Q. Were you the regularly appointed deputy of the clerk.—A. I was. 

By Mr. Semple : 

Q. Was this-letter written by you.—A. Yes, it was. 

The letter was read, as follows: 


“Montgomery, March 13, 1868. 


“Dear Sir : Your letters of the 10th came safely to hand ; also the $80 in cases of J. W. 
Andrews and J. L. Andrews, Farr H. Trammell and William M. Ogletree, and Keuben C. 
Harrist. I have also received the petition of Jesse Wilkinson, assignee, which petition has 
been duly granted, and only awaits your compliance with rule 4 of the court in bankruptcy, 
which rule requires the assignee to forward the assignment, upon the receipt of the same, to 
the clerk of the court—the clerk to make a certified copy of the assignment and return it to 
the assignee. I have quite a number of cases from your district to refer, but the $50 has no* 
been paid into court, as I some time since wrote you must be done ; consequently, cannot 
refer. I enclose you receipt in William L. Benham’s case. I also received $60 this morning 
from Thomas L. Kendy, in three cases left here; will attend to them soon. 

“Yours, respectfully, 

“E. C. Y. BLAKE, Clerk. 


“John O. D. Smith, Esq.” 


Q Look on the printed record, page 34, at the order of distribution, and say whether you 
made out the record for the supreme court on the appeal in that case; and whether you 
have examined the record made out by you and which is now on file in the supreme court in 
the case of the United States vs. Morris and Johnson, 120 bales of cotton.—A. I made out 
that order. 

Q. And say also whether you have compared the order of distribution there with the 
order in the record of the supreme court made out by you, and whether it is the same.—A. I 
myself copied only the order of distribution; a person who aided me in the office copied 
the rest of the record; but I myself compared the copy with the whole record and believe it 
to be a correct copy. 

Q. There were some verbal or typographical errors, were there not, which required to be 
corrected to make it conform to the original order.—A Yes, the word “ their” in this printed 
copy is “ these” in the original; “ United States” in the copy is “ U. States” in the original; 
and “ E. C. V Blake” in the copy is “ E. C. V. Blake, clerk” in the original 

Q. From what paper did you copy the order of distribution in making out the record.—A. 
I copied it from the original order of distribution by the judge. 

Q. Do you know Judge Busteed’s handwriting.—A. Yes; I know his handwriting; he 
signed the order of distribution. I do not think the order itself was in his handwriting. 

Q. Where did you get the order of distribution, when you put it into the record.—A. I 
got it of John Hardy. 

Q. When was that, or about what time. 

Judge Busteed. State the exact time if you can. 

A. The nearest I could approach to it is by the date of the clerk’s certificate, which was the 
12th of December, 1867. 1 might have copied it a few days before. 

Q. When was the order dated.—A. The 29th December, 1866. 

Q. State to the committee whether the orders of distribution, the orders of sale and the 
reports of sale of the cotton which was the subject of these confiscation cases, were kept in 
the clerk’s office under your control.—A. No; they were not under my charge. 

Q. Do you remember being present at the time an application was made for an order of 
distribution of the proceeds of the judgments in these cases in June, 1867 —A. I think I 
was present. 

Q. Was there any order of distribution delivered to you after that time, of that date or a 
subsequent date.—A. I never saw any order of distribution in this case until 1 got it of 
Hardy. 

Q. How came you to get it; did you go to him for it, or did he bring it to you.—A. I 
went to him for it. 

<^. How came you to go to him for it.—A. Mr. Smith told me he had got it. 


222 


Q. What Mr. Smith.—A. Mr. J. Q. Smith; that is my recollection now. 

Q. Were you engaged at this time in making out this order for the supreme court.—A. It 
was being made out in the office ; it was being furnished. 

By Judge Busteed : 

Q. Did you ever call the attention of the judge to this order of distribution in any par¬ 
ticular; and if so, what; and when.—A. I do not remember ever calling his attention to it. 

Q. Did you ever tell him that you had got the order from Hardy.—A. I do not think I 
ever had any conversation with the judge one way or the other on the subject of this order. 

Q. The lawyers were very much in the habit of taking original papers out of the clerk’s 
office when Judge Busteed went to Montgomery; were they not.—A. Since I have been in 
the office they have never had any out. 

Q. Is there any order in the office prohibiting them.—A. There is an order in the office at 
Montgomery posted up upon the door to this effect. 

Q. Did that order give some dissatisfaction to the lawyers.—A. It was a rule, I believe, 
that they had not been used to. 

Q. Did it not give dissatisfaction to the lawyers.—A. They thought it strange that they 
could not take papers out of the federal court, as well as out of the State courts. Some of 
them thought it was a very good rule. 

Q. Now, in your letter of 12th February, 1868, you say that “Judge Busteed arrived 
here yesterday morning in quite a feeble condition, unable to attend to any business.” Was 
that true or untrue.—A. I believed it was true at the time, or I should not have said so in the 
letter. 

Q. How did Judge Busteed come to give you any verbal order on the subject, in his then 
feeble condition of health. What induced that action on the judge’s part.—A. I believe 
that Worrall spoke to me a few days before you arrived, and asked me whether the $50 was 
deposited in every case that was filed in the clerk’s office; I told him it was not. 

Q. Did you communicate that to the judge before the order was given.—A. I think you 
called me in to you and asked if such was the case, and I told you it was. 

Q. Worrall was not then in Montgomery on that day.—A. I do not know whether he was 
in Montgomery or not. It strikes me that he was ; I am not positive. 

Q. When you sent this letter, did you not tell the judge that J. O. D. Smith did not, and 
was it not the fact that J. O. D. Smith did not collect the $20 for the clerk’s and marshal’s 
fees at the time he collected the $50 which was claimed to be for the register. Is it not the 
fact J. O. D. Smith did not collect the $20 as General Spencer did.—A. I think Mr. Smith 
collected the $20 from the time the order was made. I know of Smith’s sending money 
with the petitions; I do not recollect his keeping the $20 back. 

Q. You do not recollect anything about it, do you.—A. I do not recollect his keeping 
the $20 back. 

Q. Now, after your letter of February, did not John O. D. Smith send in new cases, the 
clerk’s and marshal’s fees.—A. Yes; I think he sent the $20 from the time the order was 
made requiring the $20. 

Q. When was that order made.—I do not know. 

Q. Was it before or after this letter.—A. I think it was made before this letter; along in 
February. 

Q. What time in February.—A. I will not undertake to be definite. The order was 
made at Mobile; Mr. Trimble sent me up a certified copy of it. 

Q. Will you say that John O. D. Smith did not actually refuse to collect the clerk’s and 
marshal’s fees.—A. I do not remember it. 

Q. Do you remember whether he did or not.—A. I do not recollect his doing it. 

Q. Do you recollect whether he did or did not.—A. No; I have no recollection of it. 

Q. Was there not some contest as to Smith’s collecting the $50 upon petitions that properly 
belonged to the other registers.—A. I do not remember his collecting the $50. 

Q. And was there not some contest—some complaint.—A. I believe Worrall said some¬ 
thing of that kind. 

Q. When was that.—A. I cannot tell. 

Q. Can you state whether it was before or after February, 1868.—A. No, I could not. 

Q. Will you state whether you received any number of petitions in bankruptcy in Avhich 
the marshal’s and clerk’s fees were collected and retained by J. O. D. Smith.—A. No, sir; 
I do not recollect. 

Q. W ill you state that it was not the fact that J. O. D. Smith received none of the peti¬ 
tions in bankruptcy in which the marshal's and clerk’s fees were collected and retained by 
him.—A. I do not recollect any. 

Q. Will you say that such was not the fact.—A. To the best of my recollection, after this 
$20 order was made, with all the petitions which Smith sent down he sent the $20 with 
them. 

Q. Is it not the fact that Spencer used to collect and retain the $50 and forward the $20.— 
A. Yes. 

Q. You have no doubt about that; you have no want of recollection on that subject.—A. 




223 


General Spencer forwarded the $20 with the petition in every case, or else he placed it in the 
bank in luscaloosa for awhile, subject to the order E. C. V. Blake. 

t y° u know whether Blake and J. O. D. Smith had any conversation on the subject of 

J. O. D. Smith keeping the clerk’s and marshal’s fees which he had collected ; do you know 
anything about that.—A. No. 

Q. Do you know whether Smith got all his orders subsequently.—A. Yes, up to the time 
JL l0it. 

Q. Have you ever heard that they came to him up to the time you left, finally.—A. Yes. 

Q. And he did not deposit the $50 with you, did he.—A. Not with me. 

Q. And nevertheless he got the orders, did he not, up to the time you left.—A. Yes. 

Q. Have you written to Mr Semple from Troy or Lansingburg.—A. I have written a 
letter, I believe, to him, and I have had a letter from him. 

Q. When did he write to you.—A. He wrote me from Washington, January 5, 1869. 

Q. This order of distribution of which you speak as being dated in 1866, do you know 
when it was actually made.—A. I do not. 

Q. You don’t know whether the “ 1866” is a clerical error, then.—A. I believe that is a 
correct copy. 

Q. Do you know whether that is a clerical error or not.—A. That is a copy. 

By Mr. Woodbridge : 

Q. Was that order made in 1866.—A. I merely know that that is the copy. I never saw 
the order until I copied it. I do not know whether it was made then. 

Q. Is Charles A. Mott your brother-in-law.—A. Yes. 

By Mr. Semple : 

Q. You were asked.whether J. O. D. Smith did collect and retain the marshal’s and clerk’s 
fees ; if he had collected and retained them, would you be likely to have known it. 

(Judge Busteed objected. Objection overruled.) 

A. I think I should be likely to have known it. 

Q. You were asked whether Smith got his orders in the petitions referred to him; did 
he get them as the cases were referred, or at what time did he get them—the last.—A. When 
I received the order from Blake, I immediately referred all the orders there were on the 
book in his district. 

By Mr. Woodbridge: 

Q. When did you get the order from Blake to which you referred in your answer.—A. I 
will not undertake to give the date. It was, to the best of my knowledge, between the 1st 
and the loth of August. 

Q. When, as near as you can recollect, did you receive orders from Judge Busteed to 
deliver cases over to General Spencer without the payment of the $50—if such an order was 
made.—A. It was, I think, probably 15 days after I wrote that letter of the 12th of Feb¬ 
ruary ; I am very uncertain about it. 

Q. That was after you had seen Spencer.—A. Yes. 

Q. I understood you to say, in your examination, that you could not tell when Spencer 
was there ; but when asked whether it was not as late as the first of April, you said it was 
between the date of that letter and the 1st of April; how, then, can you say it was within 
15 days of the writing of that letter.—A. I know that General Spencer came down shortly 
after I wrote that letter. 

Q. Will you state any limited time after the 12th of February within which you know 
that General Spencer came down.—A. Yes; I state positively that it was within a month. 

Q. Then it would be before the 12th of March.—A. Yes; lam willing to state that. 

January 27, 1869. 

Robert T. Smith sworn and examined. 

By Mr. Semple : 

Q. How old are you, and where do you reside.—A. I am 38 years of age, and reside in 
Wedowee, Randolph county, Alabama. 

Q. Please state any conversation had by you with General Spencer in relation to a present 
or payment to Judge Busteed, on his own part or advised ; as to John O. D. Smith, and any¬ 
thing that passed between you and General Spencer in relation to it. Commence at the 
beginning and pfo through the whole of it. 

(Question objected to and waived.) 

Q. Did General Spencer ever say anything to you; and if so, when and where, in relation 
to a payment or present made by him to Judge Busteed ; and what account did he give of it 
in his conversation with you. State when it was and where it was.—A. 1 heard General 
Spencer say that he had given Judge Busteed $1,000. The first conversation I heard 
between my brother John O. D. Smith and General Spencer was at my brother’s office in 
Opelika, or at my office; I do not recollect which. That was about the last of May or the 
1st of June, 1868. General Spencer was advising my brother to give Judge Busteed $500; 


224 


my brother seemed to object to it; and in the course of the conversation General Spencer 
remarked that be had given Judge Busteed $1,000. 

Q. Did be say what for. State the conversation between them respecting it.—A. I do not 
know that I can now recollect all that was said. 

Mr. Woodbridge. Of course you do not recollect all the language that was used ; but 
what was said ; what did you understand. What your inferences were, is not proper tor you 
to state. 

Judge Busteed. Are you a lawyer. 

Witness. No, I am not. 

A. General Spencer, I know, was endeavoring to induce my brother to give $500 to Jitdge 
Busteed ; my brother objected to it, and the general remarked that he had given $1,000. I 
do not know as I can recollect the exact language, but, as I before remarked I understood it 
was for the purpose of retaining his business. 

Q. Don’t you know what was said between your brother and General Spencer.—A. That 
was the conversation in regard to that matter at Opelika. 

By Mr. Churchill : 

Q. Did he state any reason why he had given $1,000 to Judge Busteed; and if so, what 
reason did he state.—A. I do not know as I can recollect exactly how the conversation came 
up, or how to come to that particular part of it. 

Q. What were you talking about when he said he had given Judge Busteed $1,000.—A. 
Well, my brother was objecting to it and complaining of the wrong of having to give 
money to get his business. 

Q. Well, what did General Spencer say about that.—A. I think it was then that be said 
he had given $1,000. 

Q. Did General Spencer say why he had given the $1,000.—A. I don’t know that I can 
recollect the exact words he used. 

Q. It is not necessary. We want, so far as you can give, the substance of the conversa¬ 
tion. What was said by both.—A. My attention was called to the conversation between 
General Spencer and my brother in regard to my brother giving $500. As I before re¬ 
marked, my brother objected to it on the ground that it was wrong—wrong in principle— 
and after they had conversed some time about it I said something; I told my brother 1 was 
opposed to his giving the money; that it was wrong; that if I were he I would give up the 
business rather than I would do it; and General Spencer replied that perhaps it would be 
better to give $500 than to lose $15,000, as that was about the amount that my brother 
would probably make out of the office; and my recollection is that my brother still objected 
to give the money. 

Judge Busteed. State what he said. 

Witness. He still objected. General Spencer remarked that that was right and proper, 
but that, even if my brother gave up the office and made the sacrifice, he would still have 
no remedy; that he could not come at Judge Busteed or anybody else; that he could not 
reach him; tliat he was entirely in Judge Busteed’s hands; that he could be removed with¬ 
out any cause being assigned for it; and he asked my brother if it was not better for him to 
give $50U than to lose the whole. That was about the argument General Spencer used to 
my brother. I then advised my brother, in view of the arguments used by General Spen¬ 
cer, to give the money. It seemed that there was some money belonging to my brother, as 
he claimed, in the district clerk’s hands. I think I suggested to my brother that if I had 
to give it, or if I did give it, I would give it by an order for $500 of the money that was in 
the clerk’s hands ; and my recollection is that when my brother agreed to do it, it was with 
that understanding, that if his papers should be referred to him he would give $500 of the 
money which should be in the clerk’s hands. I was going to Montgomery on some business 
of my own, and I agreed to go with General Spencer. My brother authorized me to write 
an order upon the clerk for $500, provided the papers should be referred to him. We 
accordingly went to Montgomery. I saw General Spencer the next day upon the subject. 
We stopped at the same house and roomed together, but I saw him the next day and I 
asked him if that business had been arranged as agreed upon. He said yes ; that it would 
be all right. I then went into the district attorney’s office and wrote an order for $500 and 
signed my brother’s name to it. General Spencer was in the office at the time, I think, in 
conversation with Smith; at any rate he came in about that time. I showed him the order 
and asked him if it would do. He said yes. We then walked iutcfc he room where Blake 
was. I presented the order to Blake, and told him there was an order from my brother. 
Blake read the order, and offered it back to me and said, “ I will go and get the money.” 
It seems he wanted me to hold the order till he got the money. I said, “No ; you can just 
arrange that with General Spencer; I suppose you understand it;” and General Spencer 
replied, “Yes,” and entered into conversation with Blake, and I turned round and went 
out of the office. I did not have any more to say about it. 

By Mr. Churchill: 

Q. The order was made payable to General Spencer.—A. That is my recollection about it. 

Q. Why was that.—A. I do not know. I think he was to make the payment, perhaps ; 
he was to have the money. 


225 


Q. Was there any reason, that you remember now, operating at the time in your mind to 
have the order drawn in that form.—A. No, I do not recollect why it was. It seems to me 
I was to write the order payable to General Spencer. Anyhow I did write it so, and asked 
him if it was right, and he said yes. 

By Mr. Woodbridge : 

Q. Did General Spencer suggest that you should draw the order in his favor.—A. I do 
not recollect anything about it, why it was that the order was written payable to him. 

Q. Did you act upon the supposition that this was money paid to the judge for the pur¬ 
pose of br ibery, or hiring him to make an order for the benefit of your brother as register._ 

A. My understanding was that it was for the purpose of enabling my brother to carry on his 
business. 

Q. Did you advise him, with that view of the question, to give an order and pay the 
money.—A. I explained that before I think as well as I could. 

Q. You can answer the question ; we want simply to get at the truth of the matter. In 
the first place you say you supposed that, this was done for the purpose of buying from the 
judge certain favors for your brother in his position of register, whatever they may have 
been ; did you suppose that to be so when you advised him to give the order.— A. Our 
understanding was, from the argument General Spencer made to my brother, that he could 
not carry on his business unless he did it, and lie asked him, is it not better to give up a part 
than to lose the whole. 

Q. Then at the time you advised your brother to give this order, you understood it was 
buying from Judge Busteed a favor.—A. I understood it as being necessary in order for my 
brother to carry on his business. My brother said I was to give the order provide! General 
Spencer made the arrangement to have the papers referred to him. 

By Mr. Semple : 

Q. Was there anything said by your brother about working up the cases he had on hand 
and quitting ; and if so, did General Spencer say anything in relation to that.—A. I advised 
my brother to work up what cases he had and give up the balance. I said, “You have already 
100 cases referred to you.” 

Q. Was General Spencer present.—A. Yes; I advised my brother to work up what cases 
he had and give up the balance. General Spencer replied that he could not do it; that there 
would be a second reference. I am not a lawyer and E did not understand the bankrupt 
act. I know he remarked that there would have to be a second reference, and that my 
brother could not finish the cases already in hand without further orders from the judge. 

Q. Did you have any other conversation with General Spencer relating to his having given 
or paid any money to judge Busteed ; and if so, what did lie say.—A. After I gave the order 
in the clerk’s office and went out, we met again in our room at the hotel and the conversa¬ 
tion came up again on that subject. I spoke of it complainingly, and said I considered it 
an outrage that my brother should be obliged to pay the money. General Spencer sanc¬ 
tioned all I said. I said a good deal, and he said a good deal about it. 

Q. Well, what did you say. and what did he say.—A. I said I considered it an outrage 
on my brother that he should have to pay $500 for the privilege of carrying on his business. 
That is about what I said, I think, and the general said he regarded it so too ; but he repeated 
it was better to give that much than lose the whole of his business, lie said that while my 
brother had only given $500 he had given $1,000, and General Burke had given $1,000, 
and that Worrall had told him that he had to give Judge Busteed one-half of the proceeds 
of his office. I think he was register in bankruptcy too. I did not know Worrall. 

Q. Did you ever have any other conversation with General Spencer on this subject than 
that, before you were subpoenaed here.—A. No; I have not seen General Spencer since that 
time until I met him here the other evening. I have had some conversation with him. I 
have had some correspondence with him, but have not seen him in person from that day 
until I arrived here. 


By Judge Busteed: 

Q. Look at the order shown you and say whether that is the order you wrote.—A. That 
is the order. 

The order is as follows : 


“Opelika, Alabama, June 2 , 18(58. 


“ Sir: Please to pay to General George E. Spencer $500 out of any money that may be 
deposited with you as fees of the register in bankruptcy for the 3d congressional district of 
Alabama. And much oblige, 

“ YoUrS ’ &C -’ “J. O. D. SMITH, 

“ Register in Bankruptcy. 


“E C V Blake, Esq., 

“Clerk U. S . District Court , Mid. Dist. of Alabama , Montgomery, Alabama .” 


O. Was there any reason for your drawing this order payable to General E. Speucer in 
person, and not to his order.—A. As I said before, I do not recollect any reason except that 

15 b 


226 

General Spencer was to make the arrangement. I do not recollect having any particular 
instructions about it. 

Q. Was there any reason why you omitted to sign as the attorney of your brother.—A. 
No. sir. He authorized me to write an order and sign his name to it. 

Q. Was there any reason why you did not sign “ .John O. D. Smith, register in bankruptcy, 
by Robert T. Smbh.”—A. No; he authorized me to write an order and sign his name to it, 
as though he did it himself. That was the reason I did it. 

Q. Was there any suggestion to you from your brother in either of these conversations with 
General Spencer that he should appeal to Judge Busteed himself to know about this.—A. I 
do not recollect that there was. 

Q. Did you ever make any memorandum in writing of this transaction—A. No, sir. 

Q. Before you came here, to whom had you spoken of it in Alabama.—A. I do not know. 
I do not tkmk I have ever spoken of it in public at all. I think I have perhaps never spoken 
of it more than once or twice in private. 

Q. To whom did you speak of it iu private and where.—A. I think I perhaps spoke of it 
at a party at William J. Bibb’s, the postmaster at Montgomery—a private party. 

Q. When was that.—A. It was this winter; I forget exactly the time. I was down at 
Montgomery during the session of the legislature, aud was there when the electors met to 
cast the vote of the State, which, I think, was the first Wednesday in December, J8t)8. 
While at Montgomery I was invited with some other gentlemen to Mr. Bibb’s. 

Q. Who else did you tell.—A. I have never spoken of it in public. Robert S. Hiflen, 
elector from my district, was there, and. I think, heard the conversation between myself aud 
others. 

Q. What other person heard the conversation between you and Mr. Bibb.—A. I do not 
know whether the conversation was with Mr. Bibb ; it was at his house. Several gentlemen 
were present—Mr. Glascock, Colonel Lewis Owen, of Montgomery, Mr. Harrison, of north¬ 
ern Alabama, a gentlemen who was elected to bring the electoral returns on to Washington, 
and one or two other gentlemen. Very little was said about it then ; I think the thing was 
mentioned perhaps. 

Q. Did you and your brother William speak of it frequently.—A. I do not know whether 
we ever had any conversation about it or not; I have frequently spoken of it to my brother 
John. 

Q. When did you first communicate it to Mr. Semple.—A. I have never had anything to 
say to him till I came here. 

Q. You have conversed with him about it before to-day.—Yes; I have spoken about it in 
Major Semple’s parlor, and in his presence. 

Q. And to him.—A. Yes ; I have told him what I knew about it generally. 

Q. Did Major Semple tell you what General Spencer testified about it.—A. No, sir. 

Q. Did anybody.—A. 1 have heard that General Spencer had told some gentlemen in tow r n 
what he had testitied to. 

Q. Who did you hear that he had told.—A. I do not remember. 

Q. Who told you that.—A. I think my brother William H. Smith first told me of it; I 
cannot speak positively as to how I heard it. I know that I heard General. Spencer had 
told another gentleman what he had sworn to. 

Q. Did you ever make any written memorandum of either of the conversations between 
General Spencer, yourself, and your brother, John 0. D Smith —A. No ; I never have. 

Q. Were you of the belief and conviction, at the time, that the payment of the money was 
demanded by Judge Busteed corruptly.—A. Well, I was induced to believe that it was 
necessary for my brother to give it. 

Q. That you have said. State whether you were of the belief that it was a demand on the 
part of Judge Busteed, supposing it to have been made.—A. Well, of course, I should have 
to believe it was corrupt. 

Q. Believing that, why did you not communicate the facts to the governor, or to some 
other person before this party at Mr. Bibb’s. — A. I do not know whether I ever talked with 
him about it or not; I may have talked with him ; I have no recollection about it; I do not 
know that I ever spoke of it out of our family, except on that one occasion of the party at 
Mr. Bibb’s. _ ^ J 

Q. Was Major Semple present at that party.—A. No. 

Q. Was Dr. Berney there —A. No ; I do not think he was. 

Q. W as Dr. Michael there.—A. No. 

Q. Was John Hardy there. — A. No. 

Q. Was James Q Smith there.—A. No. I recollect that Mr. C. C. Sheets was there ; and 
I think there were none others than those I have mentioned. 

Q. \ ou are an entii e stranger to me, are you not.—A. I have no personal acquaintance with 
you. I think I never fad any conversation with you until to-day. I was once on the giaud 
jury when you presided as district judge. 

Q. When was that.—A. It was in Montgomery, in May, 1866. 

By Mr. WooDBKlDGF.: 

Q. Do you know' of any act of the judge, of your own knowdedge, indicating corruption 
in his official capacity.—A. I have no personal knowledge of any ol his official conduct. 


227 


By Mr. Semple: 

Q. You were asked if you could recollect the name of the person to whom it was said Gen¬ 
eral Spencer had communicated what he swore to ; if you come to hear his name now, would 
you remember it; was it Humphreys.—A. I cannot recollect now who it was. 


Washington, January 28, 1869. 

Charles Addison Mott sworn and examined: 


By Mr. Semple : 

Question. Where do you reside.—Answer. I reside at Hamilton, Madison county, New 
York. 

Q. Where did you reside in I860.—A. My family then resided in Rensselaer county, New 
York. I was doing business in Alabama. 

Q. Did you ever serve on the grand jury at a district court in the middle district of Ala¬ 
bama; if so, when.—A. In November or December, 1866,1 was a member of the grand jury 
there. 

Q. Now, if you know of any effort made to investigate the official conduct of the officers of 
the court of the middle district of Alabama, and especially of James Q. Smith, and that those 
etforts were obstructed or interfered with in any manner by Judge Bnsteed, please relate it to the 
committee.—A. There was a complaint brought before the grand jury by a man, whose name 
I think was Hatchet, against James Q. Smith, and one of the jurors reported that Smith had 
said that the grand jury had nothing to do with the investigation of the conduct of any offi¬ 
cers of the court; that it was not within their province to do so. I told him that we were not 
contiued to any particular parties ; but that our duties required us to investigate these charges 
above all others. A committee was appointed from the grand jury to wait on Judge Bus- 
teed and get his decision upon this question. The committee returned, and stated that Judge 
Busteed had informed them that the jury had nothing to do with any question of that kind ; 
and thereupon the whole matter was dropped. Mr. Buckley, who is now a member of Con¬ 
gress, was one of the grand jury at that time. 

By Mr. Eldridge : 

Q. Were you upon the committee.—A. I was not. 

Q. Did you have any communication with Judge Busteed upon this subject.—A. I did 
not I only know of the opinion he had expressed from the information brought back by 
the committee appointed by the grand jury to wait upon him. 

Q. Who were the members of that committee.—A. Mr. Fairbanks, the clerk of the grand 
jury, I think, was one of the committee. I understand that he is now dead. 

Q. Do you recollect any others of the committee.—A. My impression is that the com¬ 
mittee consisted of two or three members. Whether the chairman of the grand jury was 
another member of the committee, I cannot say. Mr. Smith, in the jury-room, said Judge 
Busteed objected to this statement, and it was waived. 


By Mr. Semple : 

Q. Look at the article I now hand you in the Alabama State Sentinel, dated Montgomery, 
June 13, 1867, the ariicle headed “ The Bar versus the Bench. A conspiracy of rebel law¬ 
yers to destroy a loyal federal judge,” and state whether you know that Judge Busteed is 
the author of that article.—A. 1 saw him write a portion of it, and I compared the manu¬ 
script with the proof. 

By Mr. Eldridge : 

Q. Who was the. editor of the paper.—A John Hardy was at the time. 

Q. You say the judge wrote a portion of the article, and you compared the manuscript with 
the proof.—A. Yes. 

By Mr. Semple : 


Q. The article states that 

“ Judge Busteed granted the prayer of Morgan, and directed Judge Chilton, the custodian 
of the fund, to pay to Elmore $3U0 in gold coin, and $200 to Rice in gold coin; and these 
allowances were afterwards increased to $500 in gold coin in Elmore’s case, and $300 in gold 
coin in Rice’s case, leaving in the possession of Judge Chilton $2,200 in gold coin.” 

Now state whether an order was made in court, by the judge, directing the payment of 
only $300 to the one, and $200 to the other, and whether the court was adjourned without 
any other order being made.—A. That was my understanding of it. I was present m court 

at the time. „ , . , , , 

(Judge Busteed objected to the latter part of the question, but it was allowed and repeated, 


as follows:) 

Q. Did the court 
of that money.—A. 


adjourn without making any further order in relation to the disposition 
As 1 understood it there was no further order made by the court, and it 


adjourned sine (he. . .. . . ^ . 

q ij 0 y OU know when the entry was made upon the minutes of the court ot the judgment 

of tiie court upon the matter referred to in that communication.—A. It was made on the I8tk 

June, 1867. 


228 


By Mr. Eldridge : 

Q. Were you the clerk of the court at any time.—A, No; I was not. 

By Judge Busteed : 

Q. You are the same person that is described in this article headed “ The Bar against the 
Bench,” as plaintiff in the motion to which it refers.—A. Yes, sir. 

Q. Are the facts correctly stated in that article concerning your motion on that behalf.— 
A. So far as I remember; I have not read that article in some time. 

Q. Is there any matter of fact stated in that article incorrectly, according to your knowl¬ 
edge; and if so, state what that incorrect statement is.—A. I do not know of any incorrect 
statement without reading the article over again. 

Q. When you compared it with me did you assent to all its correctness.—A. I think I 
did; I do not know of any facts except in regard to this subsequent allowance in chambers. 
It was presumed that the judge, as 1 understood at the time, would make a subsequent 
allowance. 

Q. At what time, before the court adjourned.—A. The judge took charge of the papers 
and affidavits, and was to decide it during vacation. That was my understanding at the 
time. 

Q. That was the arrangement made in court.—A. Yes, the judge took the papers, and 
reserved the decision. 

Judge Busteed read the entire newspaper article and asked that it be admitted in evidence. 

The committee reserved the decision of the question. 

Q. In this same paper there is an affidavit of yours headed, “The affidavit of Charles A. 
Mott;” who wrote that manuscript.—A. I do not know whether it was Mr. Andrews or 
myself. It was revised and sworn to by myself. 

Q. Was not Mr. Andrews sick in bed, and did you not write the article in his room at 
Pizarris.—A. I think I did. 

Q. Was not Andrews sick in bed and under treatment by Dr. Michel.—A. I cannot be 
sure about that; Andrews was my counsel in the matter and he was sick in his room ; I 
■wrote it partly then, and perhaps a part elsewhere; I subscribed it myself and swore to it. 
It is my affidavit. 

Judge Busteed proposed to put the affidavit in evidence, but it. was not received. 

Q. Do you know of any act of Jud<e Busteed except what you have already stated, or of 
anything done by him in his official capacity as judge, showing, or tending to show, that 
he was corrupt in his office of judge, or took bribes. — A. I do not know of his having taken 
a bribe; I never yet received any report of the final disposition of this $>2,20U in gold, and 
<$9U0 in currency. 

Q. Do you know where this money is retained now.—A. I do not. 

Q. Do you know whether it is in the hands of Judge Chilton.—A. I understood that an 
order was made disposing of it on the 1st of June, 1868. 

Q. Of the balance of it.—A. Yes. And I was told by a party who had the means of 
knowing, that a portion of it was paid to John Q. Smith. What claim he had upon it I do 
not know. I never employed Smith to do any business. 

Q. Do you know that Smith received the money.—A. I do not know. 

Q. From whom did you receive this information.—A. From Storer, I believe ; and he also 
said that the fees of the clerk of the court for this entire suit were paid out of the funds, 
although I succeeded in that suit and the costs would go against the defendants. 

Q. Were the defendants responsible men.—A. They were reputed to be men of large means. 

Q. Has there been a final decree in that case.—A. No 

Q. Who was then managing it for you.—A. Mr. Andrews took charge of this motion 
matter; I made an assignment, I think in 1867, to Jacob Stanwood, not only of this balance 
in court, but of some 47 bales of cotton that were due to me down there, that he might 
collect the balance of the fund in court, and also market the cotton and make returns to 
me; but I have not yet received from Stanwood auy returns. 

Q. Who is this Jacob Stanwood.—A. He was formerly of Boston, and now lives in Lau¬ 
rens county, Alabama. On the first of July, 1868, or about that time, I understood that 
there was some settlement made with Stanwood in this matter, and I was told, I am not sure 
but by Stanwood, that the fees of the clerk of this court were directed—a certain amount of 
them—to be paid over to J. Q. Smith. I have never received from Stanwood or from 
Andrews any statement of the account. What has become of the balance of this fund and 
the proceeds of the 47 bales I am unable to say. 

Q. Was the cotton the subject of a suit in court.—A. Not that I am aware of, except 
that Stanwood said that 18 of the 47 bales had been attached by the owner of the plantation 
which I bad worked. When I quit planting there I sold my mules, &c., and took these 
cotton bonds in payment, and an attachment, I understand, has been taken out against 18 
bales. 

Q. Have you been back there.—A. Not since July, 1867. 

Q. Have you had any conversation with Judge Busteed about the distribution of the bal¬ 
ance of this fund.—A. No further than 1 met Judge Busteed, Stanwood, and Andrews, in 
New York, in June last, and had some general conversation with them, all in the same room, 
as to the distribution of the fund, and by whose order it had been made. I do not know that 
he paid any attention to it. 


229 


Q. Did you ask him by whose order the distribution had been made.—A. I did not pre¬ 
sume it was proper for me to speak to him about it. 

Q. You never asked the judge what order was made in the case.—A. I do not think I did. 

Q. And you have no information from him on the subject.—A. I have not. 

Q. Have you any personal knowledge of Judge Busteed’s official conduct in reference to 
any other cause than this one in which you was interested; do you know anything improper 
in his conduct in any other suit.—A. No, not of my own knowledge. This suit and the 
motion growing out of it is the only business which I have had in the United States court 
of Alabama. 

Q. How came you to help the judge in the writing of this article.—A. The judge asked 
me to bring the motion docket-book from the clerk’s room into the room where lie was writ¬ 
ing; I did so, and I compared the motion with this article; I am not sure but he intrusted 
me with the manuscript to take to the printing office. Upon Judge Busteed’s reading this 
article, he asked me if there was anything in the article to which I took exceptions. It is 
now nearly a year and a half since the article was published, and I cannot state distinctly 
as to all parts of it. There are some inferences in the article which are not correct; for in¬ 
stance, the inference that Elmore had the use of this $10,000 in gold and of this note; the 
check and the note were both payable to my order, so that Elmore had no use of the money, 
but he simply held the papers, and I was deprived of the use of the money in consequence. 

Q. Is there anything you want to state in regard to that article; if so, state it.—A. I 
have nothing to state. 

By Mr. Semple : 

Q. You stated that the matters of fact set forth in the article, so far as you can judge, are 
correct; the article purports to be based upon affidavits, and says it speaks “ by the card.” 
Have you got the affidavits, or certified copies of the affidavits, referred to in this article.— 
A. I do not wish the court to misunderstand me; it is simply my impression that Judge 
Busteed wrote the article; I do not know anything in particular about it one way or the 
other; the article states that Rice did nothing but write his name; Rice, in my presence, 
looked over the bill of complaint; I think he did very little one way or the other. All that 
portion of the article which refers to the military occupation of the gentlemen on the other 
side, is a matter that I know little or nothing about; I do not wish to be understood as 
swearing to the literal correctness of an editorial. So far as regards its general statement of 
those facts of which I had personal knowledge, I believe it to be correct; but the affidavits 
were carefully prepared and sworn to by me at the time, and I can state distinctly as to their 
correctness. 

Q. Do I understand you to say that these are the affidavits which are referred to in Judge 
Busteed’s article.—A. Yes, they are certified copies—certified by the clerk of the court. 

(Mr. Semple offered to put the bundle of affidavits in evidence. The committee held the 
question of their reception under advisement.) 

By Mr. Eldridge : 

Q. Were you in court when the original order was made of the allowance.—A. Yes, sir. 

Q. Were you there from the time the order was made until the court adjourned.—A. Yes, 
sir. 

Q. Were you present when the modified order was made.—A. I was not. 

Q. Did you know from Judge Busteed when it was made.—A. I did not; I was told by 
some one—I do not recollect whether it was Blake or Smith—that the order was made soon 
after the adjournment of the court, and I supposed at the time—as I understood from An¬ 
drews—that Judge Busteed, during the month of June, would have opportunity to look over 
this evidence and make a final disposal of the case; but he was called home by sickness in 
his family, and the matter went over. 

Q. Did you understand at the time the order was made for the payment of the $300 and 
the $200 that the judge would examine the question and make his final decision of it in vaca¬ 
tion.—A. Yes ; the evidence was given to him for that purpose. 

Q. Was it announced in open court that the judge would merely allow the $300 and the 
$200, but as to what his final allowance would be he would reserve his opinion.—A. General 
Morgan, of the counsel for the defence, in this motion, said, if it pleased the court, no doubt 
some compensation was due to the parties he represented, and he desired that an allowance 
might be made; and Judge Busteed, upon the bench, after some consideration, said: I 
allow so and so $300 and $200; and that the $7,000 in gold to be paid to Mott shall be paid by 
Chilton, and his receipt be taken and the balance be kept with the clerk of the court; and 
it was supposed that he would make his decision within a few days. 

Q. Was there any objection made on the other side to his making a further order in vaca¬ 
tion.—A. None, to my knowledge; I understood that to have been assented to. I staid 
there a few days, until the 25th of June; before I went I supposed that the order would be 
modified. I understood from Andrews, my counsel, that the $500 and the $300 was all that 
would be paid—that that was a final allowance ; but afterwards I understood that $800 more 
in gold was allowed them; but I have received no statement of the account. 

Q. Was there any order of the court showing that.—A. I do not know. 


230 


By Mr. Semple: 

Q. You said something just now of having been informed by Stanwood that an order had 
been made for the appropriation of a part of this fund to pay J. Q. Smith. Was Judge 
Busteed present when Stanwood informed you of that.—A. No, he was not present. 

January 29, 18G9. 

Jacob Stanwood sworn and examined. 

By Judge Busteed : 

Question. State your residence.—Answer. I live in Lowndes county, Alabama. 

Q. Are you acquainted with Samuel T Rice.—A. I am. 

Q. Did he ever come to your residence in Lowndes county, Alabama, and if so, when.— 
A. He came there in 1867 ; I think in the month of March. 

Q. State, if you know, at whose instance did he come.—A. I was told by Josiah Morris, 
of Montgomery, that Judge Rice would be at my house that evening. 

Q. What time of night did he get there —A. I cannot tell exactly ; it was after dark, 
after we had got through supper; as well as I can recollect, not far from 9 o’clock. 

Q. State by what conveyance, if you know, did he come.—A. He came on horseback. 

Q. Was he accompanied by any person.—A. He had a colored man with him. 

Q. Was Judge Busteed on your plantation on that occasion.—A. He was. 

Q. Did Judge Rice ever come to yuur plantation more than once.—A. Not when I was 
there. 

Q. Did Judge Rice have any conversation with Judge Busteed alone in your house on 
that night.—A. He had none. 

Q. How do you know.—A. I was, with other members of my family, sitting on the front 
balcony of the house at the time Judge Rice arrived there. 

Q. What did Judge Busteed do.— A. Judge Busteed retired. 

Q. To what part of the house.—A. He went to his room, one of the chambers, up one 
flight of stairs. 

Q. Where did Judge Busteed see Judge Rice after that, and how came he to see him.— 
A. He saw him in the house or on the balcony, 1 am not certain which ; Judge Busteed 
came at my request to see him. 

Q. Do you mean to say that Judge Busteed retired from the balcony as soon as Judge 
Rice arrived.—A. Yes. 

By Mr. Eldridge : 

Q. Was there any conversation between them—A. There was no conversation other than 
passing the time of the evening. 

Q. When Judge Rice came up what did Judge Busteed do.—A. I remember Judge Rice 
came up on the balcony; he was acquainted with my brother ; my brother and myself spoke 
with him, and Judge Busteed and the ladies retired. 

Q. Immediately.—A. Immediately. 

Q. Did they exchange salutations.—A. I think the ladies were not presented to Judge 
Rice. 

Q. Did Judge Busteed and Judge Rice exchange salutations.—A. I am not positive 
whether they did or not; if they did it was very brief. 

By Judge Busteed: 

Q. Was Judge Rice furnished supper at your house, and invited to stop all night.—A. He 
was. 

Q. He had supper.—A. He did. 

Q. In the dining room.—A. In the dining room. 

Q. Who were present during the whole time olf the supper.—A. Judge Busteed, Judge 
Rice, my son Frank Stanwood, my brother Nathan D. Stanwood, myself, and the servant 
waiting upon us, who was in and out. 

Q. Did you all sup together.—A. All except the servant. 

By Mr. Churchill: 

Q. Did Judge Busteed and Judge Rice come together at the supper table for the first time after 
Judge Rice arrived at the plantation.—A. I went to Judge Busteed at his room and induced 
him to come down and see Judge Rice, for the reason that Mr. Morris, who is a banker in 
Montgomery, and with whom I had done my banking business for the year previous and for 
that year, had come to me and asked as a favor, if Judge Rice came there to see Judge Bus¬ 
teed, that I should entertain him, treat him kindly, and all that. I gave him my word I 
would, and I hurried home to the plantation to meet him, as Judge Rice was going down on 
the railroad and I was going by the dirt road. The place of his leaving the railroad was 
six or seven miles from the plantation, and was a station on the Mobile road. This was the 
first time they came together—in the dining room—except, as I have said before, that they 
might have had a brief salutation upon the balcony, but they had had no opportunity for 
having any conversation before. 


231 


By Judge Busteed : 

Q. \V hat did Judge Rice say had brought him to your plantation, if he said anything on 
the subject.—A. He said he had come down for the purpose of getting you to stay au"exe- 
cution which was in the hands of the United States marshal for quite a large amount of 
money, some $J0,0()() and odd, and that unless the stay was granted, it might interfere very 
mateitally with Moiris s business? that and various other reasons which he urged with a 
great deal of force, he said were the reasons why he had come down to see you. 

Q- Did Judge Rice state at the supper table, in the presence of you all, to Judge Busteed 
what was the object of his visit.—A. I do not know as I can answer in any different form 
from what I have. 

Q. Will you state whether that statement was made to you when Judge Busteed was at 
the supper table.—A. The statement was made when we were all present. We all remained 
at the supper table and in the room at the request of Judge Busteed, who particularly 
requested that we should all remain, that no conversation might take place between Judge 
Rice and him separate from us. 

Q. Was that a public request made in the presence of Judge Rice.—A. I am not positive 
about that. No, I think not; I think we were requested—at any rate, I was requested—not 
to leave the room, and I think he requested my brother at the same time he did me. 

Q. At what time.—A. About 10 o’clock. 

Q. At what particular time was the request made that you should remain and hear the 
conversation between him and Judge Rice.—A. He requested me before I went down from 
the chamber. 

Q. When you went up to get him to come down.—A. Yes ; I went up and urged Judge 
Busteed to come down, and have an interview with Judge Rice, because I had pledged 
myselt to Mr. Morris that if Judge Rice came down I would use my efforts to enable him to 
have an interview with Judge Busteed. 

By Mr. Eldiudge : 

Q. What reason did Judge Busteed give for his requesting you to be present.—A. He did 
not give any reason. 

Q. When was it that he requested your brother and son to be present.—A. I am not posi¬ 
tive that I did not request them myself. Jt is a matter of recollection; I have no minute of 
it at all. I am inclined to believe that Judge Busteed made the request before I came out 
of his chamber. 

Q. That you should all remain.—A. I think so now ; that is my belief. 

Q. Did he assign any reason.—A. No, sir. 

Q. Did you know of any reason why you should all remain present—from Judge Bus¬ 
teed.—A. I knew that Morris had approached me in a way which I thought was improper 
in regard to this thing, and I did not feel as if I cared much to mix up with it anyhow. 

Q. Did you know from Judge Busteed why he requested you all to remain and hear any 
conversation which might take place between Judge Rice and himself.—A. No, sir. 

Q. He gave you no reasons —A. Not that I recollect. 

Q. Had you informed Judge Busteed of this proposition which was made to you by Mor¬ 
ris, and which you con.>idered improper, before this.—A. No, sir; 1 informed Judge Busteed 
that Judge Rice was coming down, and at the request of Mr. Morris; that I was going to 
entertain him. 

Q. Did you tell Judge Busteed that Morris had approached you in a way which you 
thought improper.—A. No; I think not. 

Q. Did you tell him this at any time before Judge Rice left your plantation.—A. No; I 
did not. 

Q. Well, what did you understand to be the reason why you were all desired to remain 
with the judge while he was with Judge Rice. The judge did not know the fact that you 
knew that Morris had approached you improperly.—A. I supposed that Judge Busteed 
desired us to be present, so that whatever conversation might take place there Judge Rice 
could not put any construction upon it different from what it was. I did not know of any 
other reason. 

Q. Did the judge say that, or anything like it.—A. No, sir. 

Q. Did Judge Busteed come down willingly, or unwillingly, to see Judge Rice.—A. He 
seemed very reluctant to come down. 

Q. What reason did he assign.—A. He said he did not want to. 

Q. Why did he say that he did not want to come down.—A. I do not know that he said 

why. 

Q. Did he give you any reason.—A. He said he did not want to see Judge Rice, and if 
he wanted anything of him he could see him in Montgomery, when the court was in session 
there. 

Q. Had your family been at supper before Judge Rice came.—A. Yes. 

Q. Did you all take another supper.—A. We sat down and went through the ceremony. 

We took two or three drinks of whiskey. We did not eat much, except Judge Rice, who 
seemed to have a pretty good appetiie. 

Q. I understood you to say that you all supped together, except the servant.—A. We had 
plates, and went through the ceremony. 


232 

Q. Had Judge Busteed been to supper before.—A. Judge Busteed bad taken supper with 
the family. 

By Mr. Churchill : 

Q. Did you not understand from Morris that Judge Rice was coming down to see Judge 
Busteed for the purpose of effecting the same thing; to effect which he had made this 
improper proposal to you.—A. As nearly as I can remember the interview between Mr. 
Morris and myself, it was very short, and was in Scott’s store, nearly opposite the basin, in 
Montgomery. He said to me that Mr. Morris had been looking for me; and in a few min¬ 
utes Morris came in himself, and said he had been wanting to see me; that he had a matter 
in the court that was giving him considerable trouble; that he was required to pay immedi¬ 
ately a laige amount of money, and that he wanted me to talk with Judge Busteed about it. 
(Mr. Semple objected to this statement, so far as legarded the conversation between the wit¬ 
ness and Mr.Morris. The objection was not sustained, and the witness proceeded.) I said 
to Mr. Morris that I would not interfere in the matter; that I should not say anything to 
Judge Busteed about it; that I thought it was improper. 

Q. Is that the whole of the improper proposition which Mr. Morris made to you.—A. Well, 
I think that is about the amount of it. 

Q. We want the whole of it. State anything else that was said by Morris to you. if there 
was anything said.—A. I did not give him a chance to sav but very little, because I 
declined immediately, when he began to talk in that way, having anything to say about it, 
one way or the other. I replied to him that I would not talk with Judge Busteed about it 
am how ; and it was then he asked me to entertain Judge Rice. 

Q. Did he make any suggestion or begin any statement which you supposed would lead 
to a suggestion on his pait of an offer to you 10 Judge Busteed, or to any other person, of a 
valuable consideration ; and if so, what was it.— A. He offered me nothing. 

Q. Did he say or begin to say anything which you supposed would lead to such an offer 
to you.—A. I think his manner and tone had a good deal more significance than what he 
said. 

Q. Did he use any words at all which had that signification.—A. I think what I have 
said to you would indicate that he was making an improper approach to me. 

Q. Did he use any other words than those you have mentioned.—A. I caynot fix in my 
mind the exact words. 

Q. Do you remember anything else that he said.—A. That is the whole of it as far as my 
recollection now goes. 

By Judge Busteed: 

Q. Was there anything said between Judge Busteed and Judge Rice upon that occasion 
in the dining room, about Morris having attempted to bribe the judge; and if so, what was 
it.—A. In the course of the conversation between Judge Rice and Judge Busteed, one of 
the reasons assigned by Judge Busteed for refusing to grant the request of Judge Rice, was 
that Judge Busteed said to Judge Rice that $5,000 had been paid to Jacob Wilson at Mobile 
to get him to influence Judge Busteed in the settlement of this matter. 

Q. What did Judge Rice say to that.—A. He said it was the first time he had ever heard 
of any such thing, and he was very much astonished at the foolishness of Morris in doing 
any such thing. 

Q. Did Judge Rice say that he “ thought Morris simply meant to buy his peace by mak¬ 
ing a payment to the extent of what he had received for the cotton.”—A. I never heard any 
such thing. 

Q. Did Judge Rice say to Judge Busteed in that conversation that “he (Rice) was satis¬ 
fied that his (Morris’s) view was that the amount paid was as a compromise to end the 
case.”—A. I heard nothing of that kind. 

By Mr. Eldiudge : 

Q. If Judge Rice had said anything of that kind would you have heard it.—A. I should. 

Q. Would you have recollected it if you had heard it.—A. I should have recollected it. 

Q. Are you sure that you would have recollected it.—A. I am sure of it, from this fact, that 
Judge Rice stated after Judge Busteed had related to him the story of the $5,U00, that it was 
the first time he had ever heard anything about it. That being the fact, of course the other 
conversation about which he had been asked could not have taken place. 

Q. That does not follow. The reason which you give is not a good reason why you should 
not remember it.—A. It is a pretty good reason in my own mind. 

Q. You say the reason why you do not recollect that any such additional conversation as 
you have been asked about took place, and why you think it could not have taken place, 
was because Judge Rice said he was very much surprised when he was told by Judge Bus¬ 
teed that $5,000 had been placed in the hands of Wilson, and that he was astonished that 
Monis should be guiby of any such foolishness; now, might not Judge Rice, in addition to 
this, have said that he believed Morris to be an honest man, and that Morris probably looked 
at it in another light; and may he not have made the two statements you have just been 
asked about.—A. I do not remember that he did. 

Q. Do you remember so that you can swear that Judge Rice did not put it in that light.— 
A. I do not remember. He may have said so. I am confident he did not say so. 


Q. Were Nathan D. Stanwood, Frank Stanwood, and yourself present all the time while 
Judge Busteed was with Judge Rice.—A. We were.. 

Q. Were they not in and out of the room occasionally.—A. No, sir. 

Q- Did they sit there continuously from the time that Judge Busteed came in until Judge 
Rice said he could stay no longer.—A. They did ; none of them left before that time. 

Q. W ho fust lett the room. A. Xhe servant went tor the animals; they were brought to 
the front door; we took the lights and went out to the door with Judge Rice. It was very 
dark and very stormy ; it rained heavily, and all of us advised Judge Rice to remain, and 
thought it was a piece of almost foolhardiness for him to go out such a night The roads, 
too, were very bad, but he said he had a guide who knew the way, and his business required 
his being back to morrow by the train in the morning. We held the lights for him, so that 
he could get out of the gate. 

Q. Did Judge Busteed go out with you.—A. As far as the door. 

Q. When Judge Rice left were you all together.—A. Yes, we were all together. Judge 
Rice and his servant got into their saddles and left, and I suppose it was pretty nigh mid¬ 
night. 

Q. Did any conversation take place between Judge Busteed and Judge Rice that night in 
any other part of the house except in the dining room.—A. No, sir. 

Q. Was Judge Rice out of your presence from the time he came there until he went away, 
except when you went up to the chamber to call Judge Busteed down.—A. He was not. 

Q. Did Judge Busteed and Judge Rice stop and talk upon the stoop when Judge Rice 
came up that night.—A. No, sir. 

Q. Not for any length of time.—A. No, sir. 

By Mr. Semple : 

Q. Has any communication been made to you of what Judge Rice swore to before this 
committee by Judge Busteed, or by any one else.—A. No, sir. 

Q. You have had no part of it related to you —A. No. 

Q. Have you had any part related to you of v\hat Morris swore to before the committee, 
by Judge Busteed or any one else.—A. No; not anything in particular that I know of. 

Q. Did you write a letter to your brother or to any other person after Morris’s examination 
in relation to his examination.—A. I did. 

(Judge Busteed objected. The question was admitted.) 

A. I have written a good many letters. 

Q. Did } ou write a letter in relation to Mr. Morris’s examination here; a letter containing 
the warning to Mr. Morris that Judge Busteed intended to prosecute him; and making this 
statement: “I should be wanting in friendship to Mr. Morris if I did not communicate these 
facts.”—A. I remember writing such a letter. 

Q. You stated just now that you thought Mr. Morris had made improper approaches to 
you in order to get you to interfere in some judicial matters in his behalf.—A. I did. I 
thought so then, and I think so now. 

Q. Stili he is your friend.—A. Yes; he is my friend. So far as that is concerned, I 
would be very sorry that Mr. Morris should have any trouble growing out of this transaction 
here. 

Q. Was that letter written by you for the purpose of enabling Morris to escape from the 
consequences of having committed bribery, or to frighten him. 

(Judge Busteed objected to the question.. Question admitted.) 

A. I had no idea of frightening him at all. I supposed at the time that Morris might have 
said something—what it was I did not know—but I had heard a great deal of talk about 
this trial outside. I still continued to do business with Morris; our relations had always 
been pleasant, with the exception of that one occasion to which I alluded in the first part of 
my testimony, in which I stopped him immediately from going on to say any more; and 
since that I have had no other than friendly feelings toward Morris. 

Q. Did not William C. Ray, of Montgomery, Alabama, apply to you on one occasion to 
obtain the opinion of Judge Busteed upon a point of law involved in a case pending in the 
district court of the United States, between William C. Ray and Murray F. Smith; did you 
not promise to obiain that opinion ; and did you not report that you had obtained the opinion 
from Judge Busteed; and that Ray need not compromise the case, but that he could defend 
it in court; and did you in fact get that opinion from Judge Busteed.—A. This is the first I 
have ever heard of such a thing. I did uot get the opinion; I never had any conversation 
with Ray about it. I know Ray personally, but I do uot know the other party. 

Q. You mentioned that you took two or three drinks at supper when Judge Rice arrived 
there ; did you not invite him to take something immediately upon his arrival.—A. I might; 
I should have been very apt to. 

Q. Did you invite Judge Rice to drink with you before the drinking which you have 
spoken of at the supper table.—A. I could not say whether I did or not. I should have been 
very likely to. 

Q. Where was the liquor kept in your house; in the room in which you took supper.—A. 
Yes. 

Q If you drank together before supper, would the drinking have taken place in the 
supper-room.—A. The sideboard was in the supper-room; we were not in the habit of 
drinking out of that room. 


234 


Q. You do not remember whether there was any drinking before supper or not. A. I do 
not remember whether I drank or not: I think very likely Judge Rice did. 

Q. If lie drank with you, was Judge Busteed present at the time.—A. He must have been. 

Q. Judge Busteed had come down then from the room above.—A. Alter Judge Busteed 
came down stairs I think we met on the balcony, and when supper was ready we went into sup¬ 
per. Previous to that time we may have gone aud taken a drink ; I am not so positive 
about that. 

Q. You are certain that Judge Rice had no conversation with Judge Busteed on the bal¬ 
cony except in your presence. How long did Judge Rice stay at your house.—A. From 
about 9 till about 12 o’clock at night. 

Q. Was the conversation between Judge Rice and Judge Busteed of a familiar, cordial, 
friendly character or otherwise.—A. They had a pretty long conversation at the table ; they 
were talking nearly all the time. 

Q. Was it a familiar and friendly conversation.—A. O, yes. 

Q. They appeared to be on good terms.—A. Yes, I think so. 

Q. Did you know that they had been on good terms at the time.—A. I did not know; I 
had not seen them together. I am inclined to think it was the first time I had seen Judge 
Rice. 

Q. You were asked what reason you supposed Judge Busteed had for requesting yourself, 
your brother, and son to remain in the room all the time Judge Rice was there, and you 
replied you knew of no reason.—A. I am not very inquisitive about other people’s affairs ; 

I make it a rule to keep out ot other people’s business as much as possible. 

Q. Who was it at Scott’s store who told you that Morris wanted to see you, or was look¬ 
ing for you.—A. It was at the clothing house of Titsworth, Scott &, Co., and I think it was 
one of the brothers Scott who told me. 

Q. Who was present in the store when Morris came in and spoke to you —A. The con¬ 
versation between Morris and myself was private. 

Q. Were you taken off one side. — A. Yes. 

Q. Aud no one else heard it.—A. I do not think any one else heard it. 

Q. Do you think you remember all the conversation which took place at this time, as to 
the matter of Morris, between Rice and Judge Busteed.—A. Yes, pretty much all. 

Q. Do you remember that pen, ink, and paper were called for, and that Judge Busteed 
wrote something while Judge Rice was then in the supper-room.—A. Certainly, I do. 

Q. What was it he wrote.—A. I did not see it; I believe he granted an indulgence, or 
wrote an order allowing Morris a stay of the proceedings in the matter which Judge Rice 
had come down there about. 

Q. When he was doing that, did you tell him that Morris had been making improper 
advances to you, and that he, perhaps, had better not do it.—A. No ; I said nothing of that 
sort. 

Q. Do you remember General Spencer coming to your plantation.—A. I do. 

Q. Were you present when a check was given to Judge Busteed —A. I was not. 

Q. Did you ever have anything to do with a check endorsed by General Spencer.—A. No. 

Q. Did you never have it in your poesession. — A. No, sir. 

Q. Do you remember telling Mr. Mott that an order of the judge would be made applying 
part of the money in court to the fee of James Q Smith.—A. I do not. 

Q. Was the transfer made by Mott to you of his interest in that fund which was in the 
court.—A. Yes; he gave me a power of attorney to collect it. 

Q. Did he not make an assignment besides the power of attorney.—A. I have not my 
papers here ; I am unable to say. 

Q. Did you ever pay him anything for the assignment.—A. I did not though I paid him 
some money in advance for several matters of account that were unsettled. A suit has 
grown out of the transaction, I believe. 

Q. A suit against you.—A. No. 

By Mr. Eldridge : 

Q. Do you know of Judge Busteed’s taking a bribe, or receiving any money for any mat¬ 
ter pending in his court.—A. I do not. 

Q. Do you know of any corrupt act of his, or of any fact tending to show any corrupt 
act of his in office.—A. I do not. 

Q. Either from conversations with him or facts within your own knowledge.—A. Never 
in my life. 

Q. Are you and Judge Busteed good friends.—A. We are most excellent friends. 

Q. How long have you been friends. — A. A great many years—12 or 15 years. 

Q. How long have you been a resident of Alabama.—A. Nearly three years. 

Q. Where did you move from to Alabama.—A. From Massachusetts. 

Q. Were you acquainted with Judge Busteed before you left Massachusetts.—A. I was 
acquainted with Judge Busteed before I left Massachusetts. 

Q. Where did you get acquainted with him.—A. In New York. 

Q. Were you ever a resident of the city of New York.—A. No. I did business in the city 
of New York; I never was a resident there. 


235 

Q. Do you own this plantation where you live.—A. I have paid out some $40,000 for it; 
yes, I own it. 

Q. Has Judge Busteed any interest in it.—A. No. 

By Mr. Churchill: 

Q. Hid you ever call it Judge Busteed’s plantation.—A. I may have spoken of it jocosely; 
and it may have been spoken of in the same way by the Montgomery papers. 

Q. Has he any interest in it.—A. He has never had an interest in it of a cent. 

^ Q. Did you ever see the order drawn by J. O. D. Smith for $500, to be paid to General 
Spencer—A. It was shown to me in Washington since I have been here. 

Q. Did you never see it before.—A. I never heard of its existence before. 

Q. Have you ever understood from the judge that he was in the receipt of money in Ala¬ 
bama from any sources beyond his official salary.—A. I heard him say, after General Spencer 
went away trom the plantation, that General Spencer had given him $1,000 ; I think that 
was the sum ; I am not positive; but I considered it quite a large sum. 

Q. Did you ever understand from him that he had ever received any other sum of money 
from other sources than his official salary.—A. No, I did not. 

Q. Did you ever know of his receiving any portion of the fees or costs in suits and mat¬ 
ters pending in his court.—A. I have not. 

Q. Do you know anything about the relations existing between him and J. Q. Smith.—A. 
I know that they were on very friendly terms. 

Q. Do you know whether each shared in the proceeds of the costs or fees of court.—A. I 
never heard a word of the kind, or an intimation of it, in my life. 

Q. Do you know of Judge Busteed’s ever receiving anything in these cotton cases in any 
manner.—A. I do not know anything about it. 

Q. Did you ever have any conversation with him about it.—A. Never in my life—about 
them or any other cases, as far as money was concerned. 

Q. Do you know of his ever having had a draft or drafts, or given any direction with 
regard to a dratt or drafts, for $5,000, said to have been given by Morris to Jacob Wilson.— 
A. No, I do not. 

Q. Did you ever hear about that draft or drafts from the judge.—A. No, I did not, other 
than I have stated previously. 

Washington, January 28, 1869. 

Amos JR. Manning sworn and examined. 

By Mr. Semple : 

Question. What is your profession, and where do you reside.—Answer. My profession is 
that of a lawyer; I live in Mobile. 

• Q. How long have you been a practicing lawyer.—A. About 30 years. 

Q. Do you remember any occasion in the circuit court of the United States at Mobile or 
in the district court—and if so, in which was it—in which you and Judge Dargan were 
refused permission to make a motion unless you would appear for the defendants in the case ; 
and if so, state what the case was, and what happened in the court between you and the 
judge. 

A. Some time in 1867 an attachment against the estate of M. Rosenstock & Co., who had 
a large stock of goods in Mobile, was issued in favor of H. B. Claffin & Co., of New York, 
for debt. The process was served by attaching the store of goods, estimated to be worth 
$75,0U0 or $80,0U0; there was no personal service. 

(Judge Busteed objected to this statement. The objection was not sustained ) 

The Wi i NESS. The property was replevied upon a bond, with sureties, and I was attor¬ 
ney for the sureties to the replevin bond; in whose favor, also, M. Rosenstock & Co. made 
a mortgage of a portion of the goods, to secure payment of a debt to them. In the December 
court of 1867, on the first day of the term, upon calling the docket, when the case was 
reached, Judge Dargan, who represented other creditors of M. Rosenstock & Co., desired to 
make some motion to the court, and was refused permission unless he would say he appeared 
for M. Rosenstock & Co., which he declined to do, upon the ground that he had no authority 
to appear for M. Rosenstock & Co., and that the appearance would probably deprive him 
of the very object he had in making the motion. I also applied for permission to be heard, 
to show that the case was not properly in court, and therefore that no judgment could be 
rendered by the court. Judge Busteed desired to know if I represented the defendants. I 
told him I did not, but that I represented the sureties of the defendants, and that I desired, 
as amicus curicc, to show that the case was not so in court that judgment could be rendered. 
I desired to make the point that a party brought into court by an attachment against his estate 
was not properly in court under the rule of proceeding in the federal courts. I was retused 
permission to make the motion, upon the ground that I did not appear for the defendants. 
In the publication made in the newspapers at the time a different case is referred to as the 
one on which the motion was made, but that was an error of the reporter. 

Judge Busteed. Was it not in December, 1866. 

The WITNESS. Yes ; on reflection I see that I was mistaken as to the date ; it was in 
December, 1866, that the motion was sought to be made and was refused by Judge Busteed. 


236 


Q. What was stated to the court as a reason for your not wishing to appear.—A. I have 
no distinct recollection whether the reason was stated or not. The reason against appearance 
I supposed would be understood to be that the very defect of which we wished to complain 
might be considered waived by an appearance of defendants; besides the other tact that I had 
no authority to appear. 

Q. What was the defect of which you complained.—A. The process by which the suit was 
instituted in this court was, as I said, a writ of attachment against the property. The writ 
of attachment was issued by Judge Busteed himself. The suit was brought by Rufus 
Andrews on behalf of H. B. Claflin & Co., of New York. Though I was not, at the time 
this motion was made, the attorney of M. Rosenstock & Co. in this particular matter—for the 
firm of M. Rosenstock & Co had employed me to bring a suit against H. B. Claflin & Co. 
and their bondsmen, for having wrongfully sued out the attachment—I went to the clerk’s 
office of the court in order to get a view of the bond and a copy of it. I was informed by 
the deputy clerk, Judge Cuthbert, that there was no such paper there. I told him I supposed 
there must be. Judge Busteed had enforced the rule very rigidly against the bar generally, 
that they should not take any original papers out of the court, and required that if they 
desired the papers they must have copies taken and certified by the clerk. I applied to Judge 
Cuthbert, and was informed that there was no such paper as the bond or affidavit there; but 
the writ of attachment, which had been issued by Judge Busteed, was in the hands of the 
marshal. I made inquiry for the original papers, and the clerk, I think, or some one else to 
whom I applied, said he supposed that they must be in Judge Busteed’s office. Mr. Andrews, 
who was attorney for the plaintiffs, was not there; he was at that time occupying an office 
in the same building—the custom-house building and court-house—in which Judge Busteed 
had a room. It was some weeks before Mr. Andrews returned to Mobile. In the mean time 
I continued my efforts to get a view of the original papers, and without success ; but upon 
Andrews’s return I found they were in his possession, and he exhibited both papers—the 
bond and affidavit—to me one day in the court-room. I examined them then. It was with 
a view of preventing judgment from being rendered against the parties, whom I considered 
not properly in court, that I desired to make this motion, and to show by the decisions of the 
Supreme Court of the United States that the party must be brought into court by the per¬ 
sonal service of process, and not by attachment of his property. 

Q. Did you offer to read your authorities to the court.—A. No; I was not permitted to do 
so, though I do not mean to say that there was any discourtesy in the tone or manner of the 
refusal. Judge Busteed refused to hear anybody that did not announce that he represented 
the defendants. 

Q. Did you apply at any time to Worrall about these papers.—A. I do not remember; 
think I did. I made several applications; I was desirous to get them. I had received $200 
as a retaining fee, to be returned if the suit should not be brought, or M. Rosenstock & Co. 
should conclude not to prosecute it; afterwards I returned the fee. I had not examined the 
litigation. 

Q. Did you ever have any conversation with Judge Busteed upon the subject of his taking 
down the dying declaration of a wounded man ; if so, where was it and when was it, and 
what was it he said.—A. I desire to be excused from testifying to the conversation to which, 
I suppose, you refer, as whatever I know about it was learned from a private conversation, 
and was not communicated to the prosecutors of this cause by me. 

(The question was objected to, and overruled.) 

By Mr. Wood bridge: 

Q. Do you know any facts or circumstances of your own knowledge tending to throw light 
upon any of the charges here. If so, please relate them to the committee.—A. I do not know 
exactly what the charges are. I have taken an oath to tell the whole truth, and I wish to 
keep by it, stating what I know relating to the charges. The complaint in Mobile against 
Judge Busteed is that he is a capricious, arbitrary, and unjust judge. If that is the charge 
made, I might relate some facts bearing upon it. 

Q. Do you know of any facts that tend to show that Judge Busteed has received a bribe, 
or has done any act in his official capacity indicating corruption ; if so, state Avhat they are.— 
A. I can state instances of arbitrary, partial, and unjust conduct on the part of Judge Bus¬ 
teed ; but so far as the passing of a bribe or anything of that kind goes, I could give no testi¬ 
mony directly to that point. 

Q. Or anything tending to it.—A. I cannot say that I know of any corrupt act on the part 
of Judge Busteed. The impression made is the result of his conduct generally in a number 
of instances. 

Judge Busteed. Do you mean the impression made upon the public, or upon yourself. 

Witness. Both on the public and on myself. 

Q. State as rapidly as you can what facts you know. Do you know of Judge Busteed’s 
ever taking any bribe, or of any fact that tends to show that he ever took a bribe ; or do you 
know of any act that shows him to be an unjust judge.—A. Yes ; I know of acts which, I 
think, show him to be an unjust judge. At this very term of the court to which I before 
referred, on the first day of the term of the court, when the docket was about to be called the 
judge gave notice that it was not a peremptory call of the docket, but a sounding of it with, 
a view to ascertain what cases were ready for trial. 


237 


Judge BUSTEED. What term of the court do you speak of. 

Witness. The December term, I860. In the course of the call of the docket, the case of 
the Alabama and Florida railroad against some person was called, and Mr. John Hall an 
attorney of Mobile, appeared for the plaintiffs, and Mr. Boyles, an attorney of the same city, 
represented the defendant. Mr. Boyles insisted upon a trial, and stated that he had his wit¬ 
nesses present in court, and that many of them had come from a distance. M. Hall objected 
to proceeding to trial, stating that this was not a peremptory call of the docket; that it was 
the first day of the term ; that it was very unusual to try a case on the first day of the term, 
and that he was not therefore prepared for trial on that day; and besides that, he stated that 
no jury had been called to attend the court. The judge decided that, the case should be 
tried that day, and Mr. Hall was compelled to take a non-suit. 

Q. Did the judge decide that that case should be tried upon the first call of the calendar.— 
A. I do not recollect about that. The call may have been gone through with, and then per¬ 
haps he turned back and called the case. I cannot say with certainty as to that; but the trial 
was ordered for that day; a jury was ordered, or about to be ordered, when the plaintiff’s 
counsel stated that it was impossible for him to proceed and make out his case on that day, 
and therefore he concluded to take a non-suit. That was at first refused, and he was charged 
with an additional $10 for being allowed to take a non-suit, besides the costs. I ought to 
state that the court was held in Mobile, in the southern district of Alabama, a district per¬ 
haps 200 miles in extent; that many of the witnesses and persons who attended court lived 
at a distance, and as it is very expensive for them to stay in Mobile, the rule or practice 
(which was of very great importance to the parties) had always been adopted in the federal 
court, as it was in our own State courts, when the docket was called over on the first day of 
the term, to set certain cases for certain days, so as to save the parties from being required 
to have their witnesses there every day of the term until their respective cases should be 
reached. Judge Busteed refused any such setting of cases for particular days, and required 
the parties to be present with their witnesses on the first day of the term. 

Q. When the judge announced that the call was not peremptory, but a sounding of the 
docket, did he announce when he would call the docket peremptorily.—A. No; the under¬ 
standing was that it would not be called peremptorily that day. 

Q. How was that understanding arrived at.—A. From the fact that it had been the uni¬ 
form practice in our courts. 

Q. That the docket should be called but once during the day.—A Yes; on the first day 
of the term. And it was then called generally for the purpose of appointing cases for special 
days. 

Q. Well, is there any other fact you wish to state io the committee.—A. At the spring 
term of the court, in 1868, owing to Judge Busteed having been wounded previously, (at least 
that was the reason assigned,) the was court not held at the beginning of the term; the 
judge came down to hold court a week or two after the first day of the regular term. On 
that day the court met, the docket was called over, some time was taken, and the court 
adjourned over till next day at 12 o’clock. On the next day at 12 the attorneys were all 
there; the judge was very exacting in regard to the attendance of counsel at the court. We 
were all there waiting for him, and word was brought over that he would not hold the court 
on that day, and it was adjourned until the next day at 12 o’clock. On the next day, which 
was Saturday, the attorneys were generally in court and waited there until 15 minutes after 
the time, when Jacob Wilson appeared and gave notice that the judge would not hold court 
on that day, and that it would be adjourned, and it was adjourned over until Monday. On 
the same evening Judge Busteed went to New Orleans; and in the papers of Monday it 
was mentioned that he would return on Wednesday. He did not leturn until the Friday 
afterwards. There were at that time a number of parties and witnesses from the country, at 
a great distance, waiting to have the cases tried in which they were interested; and they 
were compelled to remain over until that time. At the same term of the court there had pre¬ 
viously been brought the suit of John M. Critz against Allen and Curtis, administrators of 
Mr. Zach Critz, deceased, and others in equity. I was employed by some of the defend¬ 
ants and so were Clark and Lyon, of Demopolis; and we had interposed a demurrer to the 
bill, setting forth several causes of demurrer. Before the case came up for trial upon the 
demurrer, Mr. Lyon, who had not attended, had written tome as associate counsel to have 
the case continued if possible, and to see Mr. Worrall, who had been entertained at his house 
and had expressed a desire to do any service for him in his power, to appear for him and 
procure a delay of the case until he could attend the court. On calling upon Mr. vVorrall 
on the subject, he informed me that he had been employed to assist Mr. Boyles, who was an 
attorney for the plaintiff. Before the question was submitted upon the demurrer, Boyles 
moved to amend the bill in one of the respects to which exception had been taken in the 
demurrer, and it was amended accordingly by leave of the court. A few days afterwards 
the demurrer came on to be heard upon the other causes, and after consideration of it the 
demurrer was overruled. The rule then, as the committee may remember, prescribes that 
the defendant, upon the overruling of the demurrer, shall answer on the next rule-day, unless 
the court shall consider that justice and right to the defendant require the appointment ot 
some other day. The rule-day after would have enabled me to see my clients, the defend¬ 
ants, some of whom were living about 2‘JU miles away, and communicate with them and 


% 


238 


prepare their answers. I was required to answer on the second day after—“the day after 
to-morrow” was the expression. I was required to answer for defendants living' about 200 
miles away in the country, and this in a suit which was a very important one, involving the 
value, at a high price, of over 100 bales of cotton. The opposing counsel was Mr. Boyles, 
who attended to the case in court, and Mr. Worrall was associated with him. 

Q. Was Worrall the clerk of the court.—A. Not at that time. He was register in bank 
ruptcy. 


Washington, January 29, 1869. 

Amos R. Manning. —Examination continued: 

Witness. At the adjournment yesterday I was answering to the question what I knew 
tending to show that Judge Busteed was a corrupt, or unjust judge, or that he had taken 
bribes; and I was speaking of the chancery suit of Critz agaiust Curtis, Alleu, Fuller and 
others: and of the judge’s ordering answers to be filed on the second day after his overruling 
the demurrer, although some of the defendants resided about 200 miles oft’. 

Although Mr. Worrall informed me that he was employed to assist Mr. Boyles in that case, 
he did not take any part in the management of it in court. Mr. Boyles attended to it there, 
and made no motion to speed the cause, or to require an early answer. That order was made 
by Judge Busteed without inquiry what were the wishes of the parties on the subject. I 
remonstrated with him, stating that I could not get the defendants there by that time, as I 
believed; and, when the order was made,I remonstrated with Mr. Boyles against the order; 
to which he replied, “ What could I do; you saw how the order was made.” I immediately 
went from the court and caused telegraphs to be sent to persons in Demopolis requesting 
them to send into the country where those parties lived, and, if possible, get them to come 
to Mobile. By very good fortune, and contrary to expectation, they arrived theie the next 
day; and by writing till 4 o’clock next morning, I succeeded in preparing the answers; and 
the next morning I filed them. When Judge Busteed came on the bench his first inquiry 
was for the chancery docket, and his first call was of that cause. Mr. Boyles informed him 
that the answer had just been tiled and that he needed time to examine it. Time was allowed 
till the next day or the day after, I am not certain which ; I think it was the next day. On 
the meeting of the court that day, the chancery docket was again called, and that cause 
was also called. Not having found anything to except to, Mr. Boyles informed the court 
that the cause would have to be continued for evidence; and it was continued until the next 
term of the court, and has never yet been tried. 

By Mr. Eldridge : 

Q. What reason have you to think that Judge Busteed was unjust in that.—A. My reason 
is that, under the rule and practice of the court, time is allowed to defendants to put in their 
answer, after the overruling of the demurrer, until the next rule day, which would be some 
two weeks afterwards. That time was not allowed, but I was required to answer within a 
time when I did not think il possible to get the defendants there, and I so informed the judge. 

Q. What corrupt motive do you attribute to the judge in that.—A. I have no proof and 
no knowledge of any corrupt motive; but a party who was concerned as counsel in the 
case was a geutleman who was regarded with great favor by the judge, and I supposed it 
was his influence that procured the or ter. 

Q. Wno was that.—A. Mr. Worrall. 

Q. In that case was there anything by which the judge could be benefited by his ruling.— 
A. 1 do not know. If the answer had not been put in within the time allowed, there would 
have been a decree pro confessu and on that a final decree, which might have given to the 
complainants a large sum of money. The amount involved was over 100 bales of cotton, 
and the cotton was sold at a very high price. It was cotton alleged to have been teceived 
by some of the parties about the latter part of 1865, or the beginning of 1863, when cotton 
was very high ; and by a decree pro confusso a large value might have been allowed. 

Q. Was not the only possible opportunity for the judge to have been benefited in the 
matter, either through his friendship for Worrall, or his having received some consideration 
from the party opposed to you. — A. I know of no others. 

Q. Do you know any fact that would justify you in believing that that was the motive.— A 
I cannot say that I know any fact, apart from the habitual and entire accord between Mr. 
Worrall and the judge throughout his residence there, and the intimate friendship of the 
parties. 

Q. Were there any friendly relations between the judge and the parties opposed to you — 
A. No, sir; the parties were non-residents ; they resided in Tennessee. 

Q. Do you know ol any acquaintanceship between the judge and them.—A. No, sir. As 
solicitor I procured a decree, at the spring term of the court in 1867, (I think in April,) for 
the foreclosure ot a mortgage in the case of Sanford against Herrin, executor, and others ; 
and a sale ot the mortgaged property was ordered to be made by the clerk of the court as 
master in chancery. The debt a nouuted to $22,000 odd. The property was sold on the 
first Motiday in July, 1863. Mr. A. W. Trimble was the clerk, and acted as master. Judge 
Busteed was, at the time, at the Battle House, wounded and incapable of leaving his room. 

Q. From the wound which he received from Martin.—A. Yes, sir. The sale was made by 


i 


239 


Jacob Wilson as auctioneer, a man who was but an indifferent auctioneer, and who spoke 
the English language rather badly. He did nothing in the way of having the property 
advertised. I prepared the notice myself, which was signed by Mr. Trimble and published 
regularly. This man Wilson acted as auctioneer. He was engaged J5 or 20 minutes in 
making the sale. The property sold for $20,840. My client at the north desired to have 
the amount coming to him in a bill of exchange, and that arrangement was made. 1 sent to 
the clerk to get a copy of the bill of costs, and this bill, \\ hieh I now produce, was sent to 
me. For services as auctioneer there is a charge of per cent, on $20,840, amounting to 
$521. This was in addition to all other fees allowed by law to the master, who has charged 
his own special fees at $942 30. I insisted with Mr. Trimble that the auctioneer’s fees should 
be paid out of his commissions, and that he ought not to have employed Mr. Wilson as auc¬ 
tioneer and allowed him 2£ per cent. To this he replied that he had to do as Judge Busteed 
required iu such cases. This is the same Jacob Wilson that has accompanied the judge, I 
believe, as servant, on all his visits to Mobile except one, I think, and whom I saw standing 
at I is office door in New York, and who invited me into the judge’s office there. 

Q. Subsequently, or before, that time.—A. Before it, I think. 

Q. Did you ever have any conversation with Judge Busteed about that matter.—A. I 
did not. 

Q. Have you stated all the conversation that occurred between you and Trimble in regard 
to it.—A. All that [ remember. 

Q. Did you have any conversation with Jacob Wilson in reference to it.—A. I did not; 
not a word. 

By Mr. Woodbridge: 

Q. Had you not a right to appeal from that decision of the clerk to Judge Busteed.—A Judge 
Busteed was at the time in his bed, and iucapabie of attending to business. My client was 
there from Rhode Island, and anxious to go home, and he preferred to settle it on this basis. 
I suppose 1 had the right to appeal, but I believed the application wornd be unavailing, and 
would result iu detriment to other cases of mine. I so explained to my client. 

Q. What reason had you to think that your application would he unavailing. Had you 
ever taken a like appeal and failed.— A. I had not; but my firm (Manning & Walker) had 
in one case. It was managed by Mr. Walker, and I know the facts from his report to me at 
the time. 

Q. And it was the result of that case that determined you against taking an appeal in this 
case.—A. Yes, sir. 

Q. Were those costs taxed by anybody.—A. It was a bill made out by the clerk of the 
court (Mr. Trimble) as master. There is no formal taxation. 

Q. Could you not have moved for a taxation before the clerk—A. 1 considered that a 
taxation. 

Q. Was there any order taxing the bill at any sum. A. No, sir. In our practice there is 
no such order made. The clerk always taxes the bill as a matter of course. There is no 
other mode of doing it. If the attorney finds fault with it lie moves for a re-taxation. 

Q. Does not the clerk euter an order under the bill of costs, saying: “ I hereby tax this 
bill of costs at so much.”—A. No, sir. I have never known any such practice in Alabama. 

By Mr. Semple : 

Q. Does he not merely put down on the execution, “costs so much,” and set forth the 
items.—A. Yes. 

Q. And issue the execution therefor without any other order <>f the court.—A. Yes. That 
bill was sent to me as a statement ot the sum due iu that case, and was paid. 

Q. In whose handwriting is it. A. I think it is in Mr. Trimble’s. 

By Mr. Eldridge: 

Q. Do you consider this as any proper taxation of a bill of costs.—A. I consider that the 
costs were taxed on the fee-book. 

Q. Was there an order on the tee-book taxing the bill. —A. None that. I know of. I never 
heard of such an order in our practice. 

Q. Is this such a taxation of the costs as an appeal would lie upon.—A. If I intended to 
object to this taxation I would move the court for an order to retax the costs, and, on that 
retaxation. I would state my objections to the items as they stood upon the bill. 

The bill of costs is as follows: 

FORMER CLERK’S COSTS 

Costs taxed.. 

Two reports as master, $30 each. 


PRESENT CLERK’S COSTS. 
] per cent, for receiving, keeping, and paying over money . 

Final record.-. 

Making deed. 


208 40 
10 00 
10 00 

- 228 40 


$16 59 
60 00 


£76 59 









240 


Fees of master for making money: 

7^ per cent, on $100. $7 50 

6 per cent, on $100. 6 00 

4-| per cent, on $20,040. 028 80 

F - $942 30 

For services as auctioneer : 

2^ per cent, on $20,840. r . 521 00 


Total.. 1,768 29 


20,840 00 
1,768 29 


To be paid to plaintiffs. 19, 071 71 


Endorsed: “ Sanford vs. Herrin. Bill of costs.” 

Q. Do you know whether that sum of $521 was paid to Jacob Wilson —A. I do not know. 

Q. To whom did you pay it.—A. To the clerk, as master. That is, it was paid to him by 
the purchasers of the property. 

Q. Did the premises bring the full amount of the judgment.—A. No, sir. 

Q. Did they bring their fair value.—A. Yes, sir; it was a fair sale at that time. 

Q. Then there was no objection to the manner in which Jacob Wilson sold the premises.— 
A. No, sir; the objection was to the allowance of two and one-half per cent, to him. 

Q. Did your client get the full amount of his debt.—A. Yes, subsequently. I got a 
judgment at law as well as a foreclosure of mortgage. I had got a judgment in an inde¬ 
pendent suit previously. 

Q. When Mr. Trimble said to you that he was obliged to do so by Judge Busteed’s direc 
tions, what did you reply.—A. I do not recollect that I replied anything. 

Q. Did he make any further statement in reference to it.—A. He did not. 

Q. You did not ask him if he had submitted the question to Judge Busteed.—A. I did not. 

Q. You do not know that Judge Busteed had said anything to him about it.—A. No, sir. 
On the subject of costs I will mention the case of H. B. Claflin & Co. against M. Rosen- 
stock & Company, which w r as a judgment at law. It became my duty to provide for the 
defendant’s securities on a replevin bond. The execution was in the hands of Mr. Hardy, 
the marshal. The amount of the judgment was $15,000 odd, and the clerk, Mr. Worrall, 
charged one per cent, for receiving and paying over the money. There was also another 
judgment against the same defendants, at the suit of Osborn & May, the amount of the two 
judgments, with costs, being over $10,000. On the amount of the judgment the clerk 
charged one per cent, as his fees for receiving and paying over the money, in addition to his 
other fees. I spoke to Mr. Worrall about it, objecting to it, and telling him that I did not 
want to make a motion in court on the subject, but insisting that he had mistaken the fee- 
bill, which allowed him that sum incases where property had been sold by order of the court, 
as in admiralty and chancery cases, and the | roceeds paid into court for its future order as 
to distribution. I insisted that, as this was an execution from a court of law, in which the 
marshal’s duty was to collect and pay over the amount to the plaintiff, without the money 
going into the clerk s hands at all, he was not entitled to that one per cent. He seemed to think 
differently, but said he would consult Judge Busteed about it. I told him to do so. He 
afterwards, the next morning I think, told me that he had done so, and that the judge told 
him the charge was correct, and I paid it. 

Q. What did it amount to.—A. Between $175 and $200, The other fees were the ordinary 
fees in all cases of that kind. They were in addition to the one per cent 

Q. Who was the clerk at that time.—A. Lawrence Worrall. So much of what I consid¬ 
ered unjust in the judge in the administration of the office depended on his manner of con¬ 
ducting the business of the court that I find it almost impossible to describe it. It is a mat¬ 
ter which cannot be so well explained in testimony as judged of when seen. He frequently, 
or sometimes, took from counsel the examination of their witnesses. 

By Judge Busteed: 

Q. Which.—A. Sometimes ; and he did it in a manner that was calculated to impair the 
self-possession of the witness, by a fierce manner toward the witness, and a manner that 
implied that he considered the witness dishonest. In other cases he was, as I thought, unjust 
to attorneys in the same way, by harshly preventing them from conducting their causes as 
they proposed. I was present at the trial of a suit of somebody against Mr. Gimon in the 
circuit court of the United States at the last spring term in 1868, in which J. Little Smith, 
the brother partner of Robert H. Smith, was the delendant’s attorney. The suit was for rent, 
or for compensation for the use and occupation of premises in Mobile during the war, Gimon 
having held them by purchase from the Confederate States’ receiver under the sequestration 
law of the Confederate States. A witness who testified to the use and occupation of the 
premises was asked by Mr. Smith, the counsel for the defendant, if the sum named by him 
was not the vaiue in confederate currency at that time. The judge refused to allow the 















241 


question to be put. Mr. Smith then put the question in a different form, as to what money 
that estimate was made in, with a view of showing the difference between that money and 
the money in which the judgment was to be recovered. The judge refused to permit the 
question. Mr. Smith asked it in some other form; I cannot undertake to say now what, 
but with the evident object of showing that while the price in confederate money was the 
sum mentioned by the witness, it would have been less in a currency that was not so depre¬ 
ciated as that. After the question had been put in two or three forms the judge addressed 
himself very angrily to Mr. Smith, saying he had better not ask that question, or a similar 
question, any more. Mr. Smith asked what the judge would do in that event, and the 
judge informed him he would send him to jail for contempt of court. 

By Mr. Eldridge : 

Q. What corrupt motive can you imagine the judge to have had for that.—A. I do not 
know any motive of corruption in it. I thought at the time that it was done with some feel¬ 
ing of resentment, or ill will, towards Mr. Smith, and I think that the judgt- very often used 
his office tor the purpose of gratifying his resentment. I mean that he exercised his influ¬ 
ence over cases adverse to attorneys who were disagreeable to him, or who had incurred his 
displeasure. 

Q. That is the only motive for being unjust that you can attribute to the judge in that 
matter.—A. I do not know of any other. A large portion of the business of my firm in that 
court was attended to by my partner, Mr Percy Walker, and I went into it as seldom as I 
could. 

Q. You know of no predilection of the judge towards the party or the counsel who were 
opposed to Mr. Smith.—A. I do not recollect who the opposite counsel was in that case. 

Q. Do y r ou know of any reason why the judge should favor one side of that case more 
than the other.—A. No; I do not know any reason except the one I have mentioned. 

Judge Busteed. The opposite attorney was Alexander McKinstry. 

Witness. I believe that Mr. McKinstry was the opposing counsel. 

Q. Do you wish to make any different answer.—A. I will say that Judge Busteed had 
favorites in his court. Mr. McKinstry and J. Q. Smith were general favorites in his court. 
J. Q. Smith, who belonged to the middle district, the court of which is held at Montgomery, 
attended our court, and was, so tar as my observation went, always favored in getting his 
cases up and decisions made, while similar favors were not extended to other persons. 

Q. How was it with reference to Mr. McKinstry.—A. It was not so noticeable with Mr. 
McKinstry as with Smith. 

Q. Is Mr. McKinstry an old lawyer in that State.—A. Yes. 

Q. And has been long a resident of Alabama.—A. Yes. I have mentioned before that the 
court was frequently adjourned capriciously from time to time, to the great inconvenience and 
loss of persons who attended. I spoke of this having been done at one term. There were 
other occasions when the judge adjourned the court in the same way. I remember one, 
when there was a case of the United States against a man named Prim, standing for trial 
for robbing the mail, in the interior of Alabama, at a considerable distance from Mobile. 
The witnesses for the defence- came from a great distance, and left home at a season of the 
year when it was very important for them to be back. They had left, as they said, their 
families at home in a sparsely settled country, wives and children with only negroes around 
them, and they were exceeding^ pressing and urgent with us to bring the cause on as early 
as possible for trial; and during the pendency of that suit, I think, the judge went to New 
Orleans. 

By Judge Busteed: 

Q. Was it on that occasion I went to New Orleans.—A. It was on more than one occasion. 

Q. Was it on another occasion.—A Yes, sir; it was on a different occasion than the one 
of which I spoke before. 

Q. What year was it.—A. I think it was in the early part of 1867. I cannot remember 
certainly as to the time. I spoke generally without notes, except a memorandum that 1 
have made since I came here of the names of some cases. I have mentioned those as 
instances merely of what I considered as unjust acts. 

On cross-examination: 

Q Who in Mobile, adequate to discharge the duties of the clerk of the district and circuit 
court of the United States and able to take the test oath, can you name to me to fill the 
position of clerk.—A. I have never thought. 

Q. Is there any lawyer in Mobile that you know of.—A. I know of no lawyer who can 
takfe the test oath who is competent to discharge the duties. 

Mr. Eldridge: 

Q. You refer to the test oath, as it is called.—A. Yes, sir; what is called the iron-clad. 

Q. Do you know Mr. Worrall.-—A. Yes, sir. 

Q. Did you sign a petition to Judge Wayne to appoint him district attorn ey ad interim —an 
appointment by the President.—A. 1 do not remember that I did. 

Q. Do you remember whether you did or did not.—A. I do not. 

Q. Did you sign a petition to the Chief Justice of the United States for the nomination of 

16 B 


242 

Mr. Worrall as the register in bankruptcy for the 1st congressional district of that State.— 
A. I do not remember that I did. 

Q. Will you say that you did not.—A. No; I will not say that I did not. I say that 1 
have no recollection about it. 

Q. What have the relations of Mr. Worrall been to you from the time he went with Judge 
Busteed to Alabama, in 1865, until now.—A. He has always been to me polite, courteous, 
and modest in his deportment. 

Q. Did not your firm offer Mr. Worrall a copartnership in 1867,—A. Yes, sir. 

Q. Was it late in 1867.—A. I cannot undertake to say the time in 1867. 

Q. Can you state any time between January and December, 1867.—A. No, sir. I can 
only say that it was in 1867, and I think the latter part of the year—latter half of the year. 

Q. Do you know Mr. Kufus F. Andrews.—A. Yes, sir. 

Q. Did you know him during his stay in Alabama.—A. Slightly. I never had much 
intercourse with him. 

Q. Such intercourse as you had with him, w’hat was it.—A. There was nothing unfriendly 
or exceptionable in any intercourse between him and me. 

Q. Why did you deem it important then to state that Mr. Andrews had an office near the 
judge’s private chambers.—A. Because in that office he kept the papers that I alluded to, as I 
understood, and which he afterwards produced and showed to me. 

Q. Did you ever complain to Judge Busteed of the retention by Mr. Andrews of these 
bonds or papers.—A. I did not. 

Q. In the case of the Florida and Alabama railroad, of which you have spoken, where 
the defendant took a non-suit, was the default, do you know, subsequently opened.—A. It 
was not, I think. 

Q. Do you know anything about it.—A. I was present when a motion was made by Mr. 
Hall, afterwards, to set aside the non-suit and reinstate the cause. My recollection is that 
it was refused, with a sharp rebuke from you for his having made the motion. If it was set 
aside, on motion at any other time, I am not aware of it. 

Q. In the case of Critz rs. Curtis, of which you have spoken as being employed in for 
the defendants, but which came on on demurrer, and which demurrer you say was overruled, 
state what the bill was filed for.—A. The bill was filed on behalf of an administrator in 
Tennessee, to make administrators in Alabama of the same estate, and persons with whom 
they dealt, responsible for the value of some 100 and odd bales of cotton, upon an allegation 
of a fraudulent sale and transfer by the administrators in Alabama. 

Q. Was there not an allegation in the bill that the person who got the cotton left an orphan 
child, a girl of about eight years age, in survival.—A. I do not remember about the age. # 

Q. About that age—a minor, at all events.—A. Yes, sir. 

Q. Did not the bill allege that there was an accounting in a probate court of Alabama for 
this cotton, and a payment into the probate court in confederate money, so called, and a 
discharge by the probate court of the person who seized and sold and held the cotton after 
the death of the party owning it.—A. Not according to my recollection. 

Q. Will you say whether there was not such an allegation in that bill.—A. I say there 
was not, according to my recollection. 

Q. Will you say, now, whether there was or was not.—A. I have answered it. I will state, it 
the committee will allow me to do so, that it alleged, according to my recollection, that the ad¬ 
ministrators in Alabama proposed to account, and were proceeding to do so in that court, not 
that they had paid auy money into that court or been discharged by it; and that they claimed 
the right to account for the proceeds in confederate money. The probate court, as then consti¬ 
tuted, had a different judge presiding from the one who had been presiding during the war— 
a judge who had been appointed, I think, by the military officers who commanded the de¬ 
partment, under the reconstruction acts of Congress. There had been a change in the office 
of judge under the reorganization of the State. 

Q. Is the statement of the facts in my question correct, with the exception that the con¬ 
federate money was not paid into the probate court.—A. I have no objection to stating the 
whole of the allegation in reference to the settlement. The bill charged that the administra 
tors in Alabama, (who were made parties to the writ,) having sold the property during the 
war for confederate currency, had made application to the probate court for a final settlement 
of their administration, and that they proposed to account, I think, (I do not know whether 
that was the allegation in the bill or not,) for only the value of the confederate currency, so 
that the question, “whether they were responsible in confederate currency, or United States 
currency, or other currency,” could come up before that court. They did not allege either 
a payment of the money into court, or a discharge by the court of the parties, or a purpose 
to discharge them. 

Q. Was one of the causes assigned of demurrer, that the probate court of Marengo county, 
Alabama, was a court of co-ordinate jurisdiction of this subject-matter with the United 
States circuit court.—A. One of the causes assigned of demurrer was that the bill showed 
that the cause was then pending in a court of competent jurisdiction—in a State court of 
competent jurisdiction. 

Q. Do you remember what other causes of demurrer were assigned.—A. I do not remem¬ 
ber what other causes, except one was as to the torrn of the bill in reference to which it was 
orrected ; I do not remember the other causes. 


243 


Q. Do you recollect the opinion of Judge Busteed orally delivered in court on overruling 
the demurrer.—A. I remember that, on that occasion, Judge Busteed recited, with much em¬ 
phasis, the charges contained in the bill, and that he was informed at the time that the de¬ 
fendants would deny the correctness of some of them, and the fraud with which they were 
charged. 

Q. But at this time was there any answer in denying the fraud.—A. There was not. 

Q. Do you recollect the judge delivering this opinion in the case: “ The demurrer in this 
case must be overruled. The court cannot assent to the proposition that the so-called pro¬ 
bate court of Marengo county, which assumed to take cognizance of the intestacy of Jack 
Critz, in 18G4, is a court of co-ordinate jurisdiction with the circuit court of the United 
States. It is a matter of judicial knowledge that the so-called court was a creature, and a 
creation of the rebellion against the Constitution and laws of the United States, which then 
existed in Alabama. In legal contemplation there never was such a tribunal, and the so-called 
letters of administration which it issued were void, and conveyed no lawful authority to the 
defendants, Edward Critz and John G. Allen, to possess themselves of the intestate’s pro¬ 
perty. Their possession of it under this appointment was not under color of law, or of 
office, but was a trespass ob origine; whether the provisional probate court now exercising 
the functions of a court of probate in Marengo county would be held or denied to be a court 
of co-ordinate jurisdiction with this court, under the political circumstances in which the 
State of Alabama is placed, it is not necessary or useful to decide at this time. It is enough 
that all the jurisdiction it assumes in the case under consideration was transmitted to it from 
an illegal source, and through illegal channels. To hinder the professional tribunal from 
giving any effect to the appointment of the defendants as administrators by the so-called 
probate court of 1864, it seems to me, is a proper and legal exercise of the powers and duties 
of this court on the present motion. For these reasons the demurrer is overruled.” Do 
you recollect that.—A. I cannot undertake to say that that is precisely, or is not, the exact 
language, but in substance it is the same that was delivered. 

Q. To what rule of the Supreme Court did you refer yesterday in your testimony upon 
this point; was it the 34th rule.—A. I cannot mention the number. It was the rule in 
reference to the time of answering when a demurrer is overruled. 

Q. Would you know the rule on hearing it read.—A. I would. 

Q. It is as follows : “ If, upon the hearing, any demurrer or plea is overruled, the plain¬ 
tiff shall be entitled to his costs in the cause up to that period, unless the court shall be 
satisfied that the defendant had good ground in point of law, or fact, to interpose the same, 
and it was not interposed factiously, or for delay. And upon the overruling of any plea or 
demurrer the defendant shall be assigned to answer the bill, or so much thereof as is covered 
by the plea, or demurrer, the next succeeding rule day, or at such other pericd as, consist¬ 
ently, with justice and the rights of the defendant the same can, in the judgment of the court, 
be reasonably done. In default whereof, the bill shall be taken against him pro confesso , 
and the matter thereof proceeded in, and decreed accordingly.” Is that the rule.—A. It is 
the rule. 

Q. In the case of Claflin vs. Rosenstock & Co., and the case of Osborne against the 
same party, in which you state that you complained of Mr. Worrall’s retention of one per 
cent, as clerk’s fees, did you ever speak to Judge Busteed yourself.—A. I did not. 

Q. Did you ever write to him on the subject.—A. No, sir. 

Q. Do you know John Little Smith’s handwriting.—A. I am not certain that I do; I 
have seen his signature frequently, and I might recognize it, but I have no distinct recollec¬ 
tion of it. 

Q. How do you know Jenum as a party to the case in the circuit court in 1868, which you 
have testified to.—A. Simply from a recollection that a person of that name was defendant. 

Q. Did you make any minute or memorandum at the time of what occurred in that case, 
to which you testified.—A. No, sir. 

Q. Was not the case to which you refer the case of Pease vs. Dominick.—A. The case to 
which I refer was the case of Pease vs. Dominique Gimon, I think 

Q. You were not counsel in that case, nor concerned in it.—A. Not at all; I happened to 
be in court. 

Q. Do you recollect the names of the witnesses who were sworn.—A. I remember that 
there was a man named Bass who was there. 

Q. Was there any other witness sworn whose name you recollect.—A. None but the 
defendant himself; I am not certain whether he was sworn or not. 

Q. Was J. Little Smith receiver under the sequestration laws of the Confederate States, so 
called, for the district in which Mobile is situated.—A. He was. 

Q. And acted as such.—A. Yes. 

Q. Was not Robert H. Smith his counsel.—A. I do not know; if he had counsel I sup¬ 
pose he was. 

Q. I mean counsel as receiver.—A. I am not able to answer. If he had counsel I have 
no doubt he was. John Little Smith was himself an attorney. 

Q. The case of Pease vs. Dominick grew out of an act of J. Little Smith as receiver, 
under the sequestration laws of the Confederate States so called, didn’t it.—A. I think it did. 

Q. Do you recollect any other of the testimony in the case except what you have stated 
in your examination-in-chief.—A. I do not just now. 


244 


Q. Do you recollect what occurred between J. Little Smith and the judge—occurred as 
the counsel called a third witness on the stand.—A. No, sir; I do not remember. 

Q. Do you recollect that the court said to counsel that he could not ask other witnesses 
questions of the same class which have been excluded upon the examination of the last two 
witnesses.—A. No, sir; I have no recollection of that. 

Q. And that Little Smith then said, “What will you do if I ask them the same ques¬ 
tions notwithstanding your prohibition.—A. I remember an interrogatory of that sort, but I 
think it came in in a different connection. 

Q. In what connection did it come if it did not come in that.—A. I believe it was upon 
his interrogating the witness in another form, to pretty much the same effect as the questions 
which you had overruled, and your saying that he must not ask such a question again. It 
came in in reply to the judge’s saying in a very peremptory manner that he must not ask 
such a question again, or something of that sort. 

Q. Will you undertake to put your recollection of what occurred against the minute-book 
of the court taken at the time.—A. I can only testify from my own recollection, and from no 
minute-book. 

Q. Would you be willing to put your recollection of the place at which this interlude 
occurred on the trial against the minute kept by the court at the time.—A. I do not under¬ 
take to say that I may not be in error about it. I have stated only my best recollection. 

Q. What was the answer of the court; was it not, “ Commit you to jail for contempt.”— 
A. Yes, sir. 

Q. Did not Mr. Little Smith say in answer that would be uncomfortable.—A. I do not 
remember to have heard it. 

Q, Will you state whether he did or not.—A. He did not in my hearing I was not near 
the parties at the time. I was over on the other side of the bar. It is a pretty large bar. 
I did not hear any such reply. 

Q. Will you state that the court did not then say, “ Go on with the case.”—A. I do not 
remember. 

Q. Did Mr. Little Smith, as matter of fact, sum up the cause to the jury.—A. I do not 
remember. I had no interest in the cause and paid no attention except to the particular pas¬ 
sage to which 1 referred, which made an impression upon meat the time, and 1 do not remem¬ 
ber the subsequent course of the case, nor the other parties who were concerned. 

Q. How near to Robert H. Smith were you sitting at this time.—A. I was sitting from 
Robert H. Smith some 12 or 15 feet, I think. 

Q. This was in the month of April, was it not.—A. It was in 1868. I do not remember 
what month. It was in the spring term of the court of 1868. 

Q. And just after Judge Busteed had left his sick-bed upon which he had been confined 
for weeks.-- A. It was the first term after his recovery from his wound. 

Q. Had Judge Busteed recovered from his wounds then.—A. I cannot answer as to the 
recovery. He had recovered sufficiently to enable him to come upon the bench. 

Q. Do you know whether Judge PJusteed went to New Orleans to see Dr. Stone, the emi¬ 
nent surgeon of that city, in relation to the wounds which he had received, or not.—A. I do 
not know for what purpose he went over further than a report that I heard at the time as 
coming from the person who had gone over with him. 

Q. You do not know whether I had gone to see Dr. Stone, or did see him or not.—A. No, 
sir. 

Q. You know Dr. Stone.—A. I do not. 

Q. You know there is a surgeon of that name in New Orleans.—A. Yes, sir. 

Q. Did you not see J. Little Smith rise from his seat and, upon asking the court what will 
you do if I repeat the same question notwithstanding the injunction, go to Robert II. Smith.— 
A. I do not remember whether he rose from his seat or was standing. 

Q. You saw him go.—A. I saw him turn to his brother, who was a little way from him, 
and, in rather a quiet manner, asked him some questions. 

Q. Don’t you know that the question he asked was, “Had he (Robert H. Smith) a 
pistol.”—A. I do not; I was not near. 

Q. Have you ever had any conversation on this particular point with Robert H. Smith or 
J. Little Smith.—A. Not that I remember. 

Q. Are you willing to state to the committee that you have not had any such conversa¬ 
tion.—A. I say that I have had no such conversation that I remember. 

Q. Are you willing to state to the committee, under your oath, that you have not had any 
conversation on that point with either Robert H. or J. Little Smith. —A. 1 think I have not. 

Q. You have said that Judge Busteed would sometimes adjourn his court capriciously; 
will you state any days or months upon which these adjournments were so made.—A. In 
the spring of 1868, when the court was held, and Mr. Chilton was attending to the case of 
the United States against certain cotton levied upon, which was claimed by Lehman, Dun 
& Co., the judge on one day, I remember, opened, I think, the circuit court, and, having 
called a number of cases, adjourned it until the next day, as I understood. 

Q. This was after the judge bad been shot.—A. Yes, sir. 

Qt Why do you say that was a capricious adjournment.—A. Wait, sir, until I get throuo-h. 
He then opened the district court, and called the admiralty docket perhaps, or some other 


245 


docket of the district couit, and, after having called a number of cases, directed that court 
to be adjourned, and the ciicuit court to be reopened. J?he circuit court was reopened, 
some causes called, and after a while that court was adjourned. Thereupon, Judge Chilton 
arose and asked the court to take up the case of the United States vs. Lehman, Dun & Co.. 
01 in \\hich they were claimants, and endeavored to get a trial, as he had been endeavorin°‘ 
for many days before, and the court stated that the district court, in which, I think, it was 
pending, (I may be mistaken as to the court,) was adjourned, to which Judge Chilton’replied 
lie (Judge B ) ha,d reopened the circuit court after it had been adjourned, and he thought that, 
tor the trial of this cause, he might reopen the district court. The judge declined to do so, and 
adjourned the court. 

Q. And is that the capricious adjournment of which you have spoken.—A. The adjourn¬ 
ment ot the circuit court for the day, the opening of the district court, then the reopening of 
the circuit court and adjournment, I certainly considered capricious. 

By Mr. Eldridge ; 

Q. Were these courts adjourned to any specific day when the adjournments were made.— 
A. I understood them to be adjourned to the next day. 

Q. Each time.—A. Yes sir. 

Q. And then opened again on the same day.—A. Yes, sir. 

By Judge Busteed : 

Q. Do you mean to say that Judge Busteed ever adjourned either the district or the circuit 
court to a day certain, and before the arrival of the period to which the courts were adjourned, 
opened the court again.—A. That was my understanding of it on that day, and I was very 
much surprised at it. 

Q. How were the adjournments of the court usually made.—A. By an order to the crier to 
adjourn the court. 

Q. Publicly given.—A. Yes, sir: the crier standing at the further end of the room at the 
time. 

Q. Did you ever know of a secret adjournment of Judge Busteed’s courts.—A. No, sir. 

By Mr. Eldridge : 

Q. In these cases to which you refer, did the crier cry the court adjourned.—A. I think he 
did. 

Q. And then after that announcement was made by the crier that same court was opened 
again on the same day.—A. I think so. 

Q. Was business done. A. I do not think any business was done. Causes were called. 

By Judge Busteed : 

Q. You have a great deal of feeling against Judge Busteed, Mr. Manning, have you not.— 
A. I am not conscious of any malevolence against Judge Busteed individually, but against 
Judge Busteed as a judge, officially, I confess that I have a strong feeling of disapprobation 
of his course. 

Q. You have complained, have you not, of his treatment at an interview at his private 
room, December 17, 1867.—A. Yes, sir. 

Q. And with some bitterness and warmth, have you not.—A. I do not remember as to any 
bitterness. 

Q. Or warmth.—A. I have been dissatisfied, and have expressed my dissatisfaction of what 
occurred at that interview, and I would be glad to relate to the committee what did occur. 

Q. It was in the case of the Reindeer, was it not.—A. Yes, sir. 

Q. The case had been before the court and submitted.—A. I was not in court. 

Q. Do you believe that to be the fact.—A. It had been submitted upon exceptions, as I 
was informed. 

Q. Now, Mr. Manning, if you prefer to state your own version of this interview than to 
have me put these questions, I am entirely agreed that you should do so.—A. I should like 
to do it. The steamer Reindeer was built for certain parties, one of whom was a client of 
mine. Miss Louisa Graham claimed three-eighths of her, of which she had been unjustly 
defrauded by a sale. She had commenced a suit in chancery court to assert her right to 
these three-eighths. Testimony had been taken- 

Q. Chancery court of the State.—A. Yes, sir. 

Testimony taken and the cause submitted. The decree of the chancellor was daily 
expected asserting her title to three-eighths, and was shortly afterwards rendered. I, of my 
firm, Manning & Walker, conducted that suit alone. Mr. Walker had nothing to do with it 
and knew little about it. But in my absence from home—I think while I was making a 
trip to the north—a controversy between subsequent purchasers of the Reindeer arose, and 
one by the name of Doss, claiming to be half owner of the Reindeer, filed a libel against 
Stone, the alleged owner of the other half of the Reindeer, and, assigning as a reason his 
dissatisfaction with the conduct and management of it, prayed for a sale of the Reindeer 
entire, by the decree of the court of admiralty. That was in the court of admiralty, Judge 
Busteed "presiding. My partner, Mr. Walker, was applied to by Mr. Stone, the defendant, 
and filed his answer, in which he admitted the equal ownership of plaintiff and defendant, 



246 


but objected to the sale, and made exceptions to the libel. The case was then in the hands 
of Judge Busteed when I became informed of this, and knowing that a sale by a court of 
admiralty of the entire vessel would give to the purchaser a good title against all the world, 
I, immediately upon hearing it, became alarmed, explained the matter to my partner, and 
desired that the case might be arrested until Miss Graham’s interest in the boat could be set 
up. But the cause had been submitted to Judge Busteed, and his decree might have been 
rendered the next morning. Under the circumstances I went to his room, as I would have 
gone to .the room of Justice Story or Lord Stowell, in a similar case, to ask his suspension 
of the proceedings upon the case until the claim of Miss Graham could be put in, and her 
right protected. I asked a suspension of the proceedings for that purpose. To my surprise 
Judge Busteed considered, or affected to consider, that this was an improper application made 
to him in reference to a case that had been argued before him and submitted. He expressed 
the opinion that it was improper. Afterwards, in rather milder terms, he said he thought 
upon reflection I would,see it was improper. I applied simply for a delay of his action until 
the right of Miss Graham could be set up and asserted by another proctor, and offended by 
the implication that this was an improper application to him, I retired from Judge Busteed’s 
room, and I have never entered it since unless upon business. 

Q. Was there any person present in Judge Busteed’s chambers at this interview between 
you and him.—A. Mr. Kellogg was there in conversation with him. 

Q. What Kellogg.—A. The member of Congress here now from Mobile. He was then 
collector of taxes. You were holding a conference, and I supposed I had irritated you by the 
interruption. 

Q. Did I not tell you that I thought it improper for you to make this application privately, 
and that it must be made in court.—A. Yes; and I replied that the claim would of course 
be filed in open court, but I wanted to prevent you from going on with the matter until 
the opportunity was afforded to file that claim. 

Q. Could not you have intervened in admiralty for the proceeds of the sale of the ship for 
your clients.—A. It might be. 

Q. Could you not.—A. I will not undertake to say what the law is on that subject. Miss 
Graham may have had objections to the sale, and should, I thought, have been allowed an 
opportunity to make them, and if she and the other defendant who opposed it were majority 
owners of more than half, I think the court would have respected their desire not to have the 
property sold, if the boat was in the regular trade for which she was built 

Q. Even in that case it would have been a matter resting in the sound discretion of the 
court as to what was best for the owners, would it not.—A. In the legal discretion of the 
court upon the evidence. 

Q. As matter of law it would have rested there, wouldn’t it.—A. Yes, sir. 

Q. Then your client could not possibly have been harmed if she really owned three-eighths ; 
and if you could have intervened in admiralty for the proceeds and made proof of her title for 
three-eighths of the vessel, she would have got her decree for that, would she not.—A. Per¬ 
haps she would. She might, however, have preferred the boat to the proceeds in the registry. 

Q. I mean a matter of law.—A. I suppose the court would, in a proper case, have allowed 
her her portion of the proceeds. 

Q. As matter of law, do you know of any difficulty of your client proceeding in that 
way.—A. I do not. I had not had time to consult her. She did not live in town, and my 
partner having for our firm engaged our services for the defendant, Stone, we were unable 
to take the case for Miss Graham. I therefore sent for Miss Graham, who employed Mr. 
Stewart, and he filed the claim for her, or endeavored to file it. 

Q. The claim for what.—A. Her claim setting forth her ownership of three-eighths of the 
boat. 

Q. After this submission of the case.—A. Yes, sir. 

Q. Did she ever file her claim for any amount of the proceeds that she claimed to own. — 
A. I do not know. 

Q. Was she refused after this to file her claim.—A. She was refused permission to file her 
claim, as I was informed. I was not in court at the time. Mr. Stewart filed her application 
and claim, or made application to do so, on the same day Judge Busteed rendered a decree 
in the cause, as I understood. I was not in the court, but had a report of the proceedings 
from my partner, who was there. 

Q. Can you state any other occasions of the capricious adjournment of the court by the 
district judge.—A. I cannot remember the occasions. 

Q. You yourself don’t much practice before the court.—A. Not a great deal. 

Q. Mr. Percy Walker, your partner, did the business in that court for your firm—A. 
Most of it; he did the admiralty business. 

Q. Your firm are counsel for Martin, who shot Judge Busteed.—A. Yes; we have been 
retained to defend him. 

Q. Prior to this occurrence, in December, 1867, between you and the judge, you had been 
on terms of social intercourse with him, had you not.—A. Yes, sir. There had been nothing 
personally unfriendly hetween us. We were not much together in social intercourse. 

Q. Did you dine with Judge Busteed at Mr. Anderson’s, at a dinner given by Mr. Ander¬ 
son to Judge Busteed.—A. I did. 


247 


Q. On February 8, 1867.—A. I do not know the date. 

Q. About that time.—A. I presume so; it was in the winter of 1866-67. 

Q. On the 13th of February, 1867, did you give Judge Busteed a dinner at your own 
house.—A. 1 gave him a dinner in the winter of 1866-’67 ; on what day I do not know. 

Q. That was at a dinner table surrounded by lawyers entirely.—A. Yes, sir. 

Q. Was J. Little Smith one of them.—A. I think he was. 

Q. Was Jno. J. Walker.—A. He was. 

Q. He was judge of the supreme court.—A. No, sir; John J. Walker was never judge. 
He had been attorney early in life, but he was then a merchant. 

Q. Was Jno. T. Taylor one of them.—A. Yes, sir. 

Q. He is a lawyer.—A. Yes, sir. 

Q. Was D. C. Anderson one of them.—A. Yes, sir. 

Q. Thomas Herndon one of them.—A. Yes, sir. 

Q. Geo. N. Stewart.—A. Yes, sir. 

Q. W. J. Jones, predecessor in the place Judge Busteed holds.—A. Yes. 

Q. Your partner.—A. Yes, sir. 

Q. Does your partner, Percy Walker, that you know of, entertain the same feeling towards 
the judge that you do.—A. I cannot undertake to say what his feelings are. I think he 
entertains pretty nearly the same feelings as I do towards you. I desire to say in reference 
to these entertainments given to Judge Busteed that his course as judge had created a great 
deal of dissatisfaction among the members of the bar, and they considered that it was 
necessary to do something to try and make him more kindly and just in his office. It was 
suggested that attentions and civilities of the members of the bar to him might have the effect 
of making him a better and juster judge, and that it was our duty to our clients, and to the 
public for whom we were representatives in his court, to be as kindly in our relations to him 
as possible. It was upon suggestions of that sort that it was intended to give him a series 
of entertainments. Some were given; but they were not continued, and my own was the 
last given by the members of the bar, as members of the bar, to Judge Busteed. 

February 1, 1869. 

Mr. Manning with the permission of the committee made an explanation of the testimony 
he had previously given. He said: 

“In reference to the case of the Reindeer, I do not wish to be understood that Miss Gra¬ 
ham’s rights were ultimately sacrificed in the case. By an arrangement made between the 
parties, and the agreement which was made between Mr. Stewart, proctor for Miss Graham, 
and Mr. Boyles, proctor for the libellant, and the client of Manning and Walker, Mr. Stone, 
a modified decree was made by which her rights were saved, and she afterwards obtained her 
interest in the boat."’ 

By Mr. Churchill: 

Q. That was the arrangement made after the court had refused you the opportunity of 
appearing for her.—A. I did not appear for her. It was the arrangement made after the 
judge’s refusal of my application to delay the proceedings until she could intervene. In the 
matter of the fees allowed Jacob Wilson in the case of Sanford against Herrin and others, 
those fees did not come out of my clients, the plaintiffs. I did not represent the defendants 
in that suit: I represented the plaintiffs, who received their money. I was asked about a 
supposed conversation with J. Little Smith, or Robert H. Smith, about what J. Little Smith 
said to his brother at the time of the controversy between the judge and J. Little Smith in 
the trial of the case of Pease vs. Dominique Simon. I remembered that I had been told what 
had been said by J. Little Smith to his brother; but I did not think I was told so by them. 
According to my recollection now, I think J. Little Smith told me at a subsequent time 
what he had said to his brother. It was that he had asked his brother if he had a pistol I 
remember also, by its having been mentioned to me since my examination last by another 
person, that after Judge Busteed had told J. Little Smith that he would send him to jail for 
contempt, Mr. Smith said, “I or counsel,” I forget which, “have rights in this court as 
well as the judge.” I did not recollect that in my examination the other day. 

By Mr. Eldridge : 

Q. That was after the judge had said to him that he would imprison him for contempt if 
he repeated the question.—A. Yes, sir; as I understood it. 


Washington, D. C., February 1, 1869. 

Jones M. Withers sworn and examined. 

By Mr. Semple : 

Question. Will you state to the committee the history of your connection and conversation 
with Judge Bqsteed respecting the 57 bales of cotton, the property of A. L. Williamson, con¬ 
signed to you as commission merchant. State so much of it as shall be necessary to explain 
the transactions between you, the judge, John Hardy, and Jacob Wilson, in relation to the o7 
bales of cotton.—Answer. In the early part of 1866 I received a consignment of 57 bales of 


248 


cotton from A. L. Williamson, shipped from his plantation in Autauga county, Alabama. 
With the cotton came a letter from Williamson, informing me that the cotton was under 
attachment from the district court of the United States for the middle district of Alabama, 
and that he had shipped it to prevent its being stolen ; that several attempts had been made 
to steal it; that if it was retained there he should either lose his life or the cotton, and he 
did not know but both ; and that I must hold the cotton subject to the decision or orders of 
the court. Some weeks after that, a deputy marshal—I think by the name of Davis—called 
and took my receipt for the cotton ; some time thereafter, I was informed the cotton "was 
being hauled out of the planters’ warehouse, where it had been stored and insured by me ; 
and some short time after that my attention was drawn to an advertisement in the paper, 
advertising 49 bales of this cotton to be sold under execution. I called on the marshal and 
found that there was an execution against this 49 bales approximating to $3,000, I think ; 
rather less than that, but that was very near the amount. As the agent of Williamson, I 
tendered payment of the execution to the marshal and demanded the cotton. He manifested 
some hesitation, but assented to it on that day, and I think on the next day the matter was 
concluded and I received from the marshal an order upon the Verona warehouse for the cot¬ 
ton which Avas originally stored in the planters’ warehouse. 

Q. State who the proprietors of that Avarehouse Avere.—A. My understanding was, that a 
man by the name of Trabis had rented the warehouse, but W. P. Hammond & Co. were 
the responsible parties. I did not pursue the usual mercantile course, and send this order of 
the marshal to my own Avarehouse men, with instructions to haul it back and store it in their 
Avarehouse, Avhere it had been stored by my order ; I had A r ery little confidence in those days ; 
stealing was the rule doAvn there ; honesty Avas the exception among cotton collectors and 
claimants, and when I first heard that the cotton bad been removed from the Planters’Avare¬ 
house, I made up my mind that there Avas some dishonesty purposed. I therefore sent the 
Aveigh-master and sampler to the Verona Avarehouse—keeping the marshal’s order myself— 
with instructions to examine and see whether it Avas the same cotton which was first received, 
and which I had had sampled and Aveigbed. They returned and reported that it Avas not the 
same cotton. I then sent the clerk of the Planters’ Avarehouse with the four tiersmen, Avbose 
business it Avas to arrange the cotton in the Avarehouse and examine every lot; these, with 
the sampler and weigh-master, went to the Verona Avarehouse, re-examined and re-Aveighed 
the cotton, and brought samples of it to my office. The cotton was different from the 
original cotton, in the bagging, the mark, the shape, and Aveight of the bales, and in the 
quality of the cotton. It Avas unmerchantable cotton. The trash and refuse stuff around 
the wharves and in the warehouses and pickings from dailiaged bales had been picked up 
and substituted for the original cotton, of which I had the sample. I went immediately to 
John Hardy, the marshal, and reported the facts ; he sent his deputy, Jacob Wilson, to my 
office to examine the matter; I accompanied Wilson back t«> Hardy’s and told him that the 
matter must be rectified. He instructed Wilson that the cotton must be obtained ; that he 
must go up to the warehouse and attend to it; and day after day I was miming down Wil¬ 
son and Hardy to have this trash taken away and the original cotton replaced. Despairing 
in this, I determined to apply to the court for remedy and to have justice done to Wil¬ 
liamson. I then went to Judge Busteed’s private room and stated to him the facts. After 
making my statement to him I Avent for and brought witnesses to the front of his room, and 
I went in and told him that there were witnesses who would state all the facts ; that Wilson 
had examined the cotton and acknowledged that it was not the same. The shape of the 
bales, and the quality of the cotton which they wished to substitute, showed to any one 
accustomed to handling cotton that it was packed in what was called the pickery press in 
the city, and that it was not in the original planters’ packages. 

Q. Were the marks upon these substituted bales the same as the marks upon the original 
bales.—A. No ; that was a matter, hoAvever, that Avould jse very readily overlooked by those 
who Avere not so particular as they might have been in their theft. There was a private 
mark put on one end of the original bales of Williamson’s cotton, and his initials “A. L. 
W.” were put on the reverse end of the bale, Avhich Avas not the end regularly marked. 
They took the reverse end and put his initials upon that end of the substituted bales, leav¬ 
ing the mark off the other end. Appearing to be satisfied that wrong had been done, Avith- 
out any examination, I belieA^e, of the witnesses I had brought, Judge Busteed immediately 
sent for John Hardy and told him that the matter had to be rectified ; that a wrong had been 
done, and that it must be settled to my satisfaction, or the cotton must be found. He Avas 
quite emphatic in his instructions to Hardy, and I was then, from that, turned over to John 
Hardy. John Hardy gave Wilson instructions to run the toAvn down and examine every 
Avarehouse, it necessary, in order to find that cotton. I never expected that the cotton would 
be found. The matter was postponed from day to day and from week to Aveek by Wilson, 
until Judge Busteed left for New York, and there the matter ended until he returned in the 
fall. I then immediately applied to him again. He was quite emphatic in saying that the 
matter must be rectified ; and after various delays he at last told me to enter a motion in 
court that it might come up regularly before him. Hardy desired me to sue Hammond & 
Co., which I refused, and said I should not change the responsibility from the*district court 
of the United States; that I had no legal claim on Hammond & Co.; and that I intended 
to hold the court responsible, Judge Busteed then told me that I might bring the matter 




249 


Id ef 01 e liim by a motion. This was done and the trial was hold. Exception was taken to 
the jurisdiction of the court, it being held in the southern district instead of the middle dis¬ 
trict, which exception was pronounced good ; but it was agreed that while jurisdiction could 
not be given to the court in the southern district, the testimony that had been taken should 
be considered as having been taken in Montgomery, and that the arguments and decision 
should be had in the middle district. The testimony was very much as I have stated, except 
that it biought out the tact that the cotton was first hauled from the Planters 5 warehouse to 
the Hamilton warehouse, where it did not stay perhaps longer than 48 hours, and that it 
was taken thence to the Verona warehouse. The testimony on the trial brought out the 
fact also that Wilson had received the order for the removal of the cotton and had endorsed 
it to a man by the name of Coleman, I think, and through Coleman’s orders the cotton had 
been hauled first to the Hamilton warehouse and then to the Verona warehouse. 

Q. Who tried this case for you.—A. William Boyles was my lawyer, and Thomas Ham¬ 
ilton was the attorney for W. P. Hammond & Co. 

Q. Did anybody appear for the marshal.—A. No ; the motion was entered against Ham¬ 
mond &, Co. to show cause why they did not deliver the cotton according to the orders of 
the marshal. 

Q. The motion was not on your account, then.—A. Yes ; the motion was to enforce the 
order of the marshal to deliver the cotton to me. The trial being gone through, the evi¬ 
dence all being taken, Judge Busteed adjourned the court, and some days after went up the 
river to Montgomery. After Judge Busteed had left Mobile, John Hardy asked me on what 
terms I would compromise, stating that the parties wanted to compromise. I told him for 
precisely the amount that Williamson was entitled to—no more and no less; and that I 
would see what that was. I had the classification of the cotton ; I knew about the time I 
would have sold it, and what it would have brought at that time, and having the weight of 
the cotton I made a calculation and saw the exact amount due him, and told Hardy I would 
take that amouut. 

Q. Do you recollect what that sum was.—A. Between $9,000 and $10,000 I think. I do 
not know the exact amount without reference to my books. I am satisfied it was not less 
than $8,000. 

Q. What was the amount of the execution which you paid.—A. About $3,000. Eight 
bales of the cotton had been condemned, as I learned from the marshal, as belonging to the 
government. The execution issued was for costs, and I think a judgment for corn sacks, 
which had been furnished to Williamson by the confederate government and not accounted 
for, and this $3,000 execution was distinct from the judgment against the eight bales. 

Q. The 49 bales you say you claimed between $9,000 and $10,000 as pay for.—Yes, from 
$8,000 to $10,000. John Hardy and Jacob Wilson were the only parties I saw at all in 
regard to the compromise of the matter; and they at last agreed to accept of the compromise, 
and pay the amount which I required, I agreeing to wait some days for them to raise the 
amount. Wilson said lie would go to New Orleans to see a man by the name of Palmer, 
who he stated to be one of the parties responsible, and Hardy said he would send him there. 
Some days elapsed, and Wilson professed to have returned and brought a portion of the 
money, which he declined to pay to me, from the fact that he had not sufficient to pay the 
entire claim; and he said that some parties in town must pay the balance. I told him at 
last that I should wait no longer; that if the money was not paid, responsible parties must 
come in and assume the balance due to me. Some little time thereafter he brought one of 
the firm of William P. Hammond & Co.—I think Hurtel. Hurtel requested that I should 
take the refuse unmerchantable cotton, which they had tried to palm off upon me, and sell 
it for what it would bring; and he agreed immediately upon my making sale of this refuse 
cotton he would send me a check for the balance which should remain due of the amount of 
the compromise, after adding the proceeds of the cotton so sold to the amount which Wilson 
had brought from New Orleans, and which was stated to be $4,000 or $4,500 ; the latter 
sum, I believe. To this proposition I assented. Whilst this refuse cotton was in my office 
and unsold Judge Busteed returned. I immediately called upon him and stated how the 
matter had been compromised and arranged, and that Wilson declined to pay over the $4,500 
until the entire amount was ready to be paid. I appealed to the judge to make him pay it 
over, saying that I thought Wilson ought not to hold it, and that it should come into my 
bands as the agent of Williamson. He said, certainly, this was the proper course; and he 
sent for Wilson, and directed him to bring the money, which he did, and paid it to me in 
Judge Busteed’s room. Some days thereafter I sold the refuse cotton, and Hammond & Co. 
sent me their check for $1,800, or thereabouts, which was necessary to make up the amount 
I was entitled to, in addition to the proceeds of the refuse cotton and the sum paid over to 
me by Wilson. 

By Mr. Eldridge: 

Q. Have you any knowledge of any fact that would lead you to believe who it was that 
changed the cotton.—A. I have no knowledge as to who actually changed it, but 1 have 
stated the facts which, I think, would indicate the parties who knew who did change it, if 
they did not do it themselves. 

Q. What was that.—A. I stated that the proof upon the trial was that Jacob Wilson had 


250 


received the order for the removal of the cotton from the Planters’ warehouse, where it was 
originally stored by me, and where it was safe—for it was insured—and that Wilson endorsed 
the order to Coleman; that the cotton was carried to the Hamilton warehouse, where it was 
kept about two days, and thence removed to the Verona warehouse, which last warehouse 
was the one upon which I received the order. The fact that the cotton consisted of refuse 
cotton that had been picked up about town, showed that it was not changed in the Hamilton 
warehouse, but that it was changed in the transit to it; and if the change was not complete 
then it was completed in the transit to the Verona warehouse. It was generally understood 
then that that was the way in which cotton was being changed ; and I have no doubt myself 
that that was the process by which this was done, although I have stated to you all the facts 
on which I have based my opinion. 

By Mr. Churchill : 

Q. Why was this property taken from the Planters’ warehouse to the Hamilton warehouse, 
and thence to the Verona warehouse. Do you know of any reason why it was not taken 
from the Planters’ warehouse directly to the Verona warehouse.—A. I do not know any 
reason. Judge Busteed asked that question upon the trial, and somebody swore that the 
Hamilton warehouse was about to be closed up, and therefore it was that the cotton was 
removed to the Verona warehouse. 

Q. Do you recollect when this trial was had.—A. I think it was in February, 1867. 

By Mr. Eldridge : 

Q. Could that cotton have been exchanged without the knowledge or connivance of the 
marshal or his deputy.—A. Yes, sir, it could have been. It was possible, of course, for the 
warehouse men to have changed it, but then the warehouse men were responsible for the 
identical cotton; and they were parties whose responsibility was looked upon as good. 

Q. Did the warehouse men account for this cotton to you, or was it paid by the marshal.— 
A. As I said to you, Jacob Wilson paid me about one-half the amount, and then Hurtel 
agreed to pay what might be lacking, after the refuse cotton was sold and its proceeds added 
to the amount that was paid by Wilson. 

Q. Do you know from Jacob Wilson, from John Hardy, or from the Hammonds, who did 
pay, or who furnished the means of paying the money to you.—A. I know nothing as to 
who furnished Jacob Wilson the $4,500, except what he said. 

Q. You said he professed to go to New Orleans ; did you not believe that he actually went 
there.—A. I used a word which did not precisely convey my meaning. I meant that I 
had no personal knowledge of his having gone to New Orleans. I have no doubt but that 
he did go to New Orleans, and saw Palmer there. Common report connected the names of 
Palmer and Coleman in cotton transactions, very extensive and very dishonest. I know 
neither of them, and speak only of their reputations as reported to me. 

Q. What could induce Jacob Wilson to go to them, unless he knew r something about the 
change of the cotton.—A. I have my own opinion, and that is, that the thing was not done 
without Wilson’s knowledge. 

Q. When you first talked with Wilson about it, did he speak of Palmer and Coleman.—A. 
No; with Palmer I never heard mixed up with the transaction until Wilson told me that 
he was going to New Orleans to see Palmer. 

Q. Did he give any reason for going to see Palmer about it.—A. No; except that he 
knew who the parties were who were going to pay the money. 

Q. Did he state whom he intended to get the money from.—A. He said from Palmer, or 
he would bring him to Mobile. 

Q. When you told the judge that the matter was compromised, and that Wilson had the 
money, was Wilson present.—A. No; the judge sent for him. Wilson obeyed the order; it 
was a peremptory order. Wilson said he had deposited his money with a broker, I think, 
by the name of Lyons. The judge told him to go immediately and get it, which he did. 

Q. The judge’s direction to him was mandatory, was it.—A. Yes. 

Q. Where was Hardy.—A. Hardy was not present. 

Q. Did Hardy, when you called upon him and told him you could not longer wait for a 
settlement of the matter, tell you where the money was, or who had changed the cotton.— 
A. No; I don’t think John Hardy himself ever said that Palmer paid the money. I think 
that all my information in reference to Palmer was from Jacob Wilson, though I am satis¬ 
fied that in the conversation after the money was brought it was spoken of in Hardy’s pres¬ 
ence as having been brought from Palmer. 

Q. Did Wilson or Hardy volunteer any justification of the change.—A. No. They gave 
no explanation of the matter, and I demanded none. As I have said, I Avas not seeking the 
rogue or rogues, but the cotton or indemnity. Cotton rogues were too numerous, and from 
their positions and combinations too powerful to justify any prudent man, in the then law¬ 
less condition of that section, in attempting to restrain them by prosecutions. 

Q. Did they manifest any surprise when you told them that that was not the cotton.—A. 
Not that I perceived. John Hardy was not a man who showed surprise about anything. 

Q. Did they make any remarks justifying their conduct as officers of the court.—A. Wil 
son, when he saw this refuse cotton, this unmerchantable trash, side by side with the sample 


251 


of the original cotton—the difference was so great—looking at me, said, “This looks as if 
something was wrong.” I told him it was very obvious that there was something very wrong, 
and I wanted him to right it very quickly. He admitted that the cotton was Sot the same. 
JSo man who ever saw the planters’ bales of cotton and this pickery cotton could hesitate 
to admit that there had been a change of the cotton. 

Q. When was it that the judge said to Hardy that this must be made right.—A. At the 
time I first had the conversation with him. 

Q. Did Judge Busteed admit or deny any knowledge of the transaction when you first 
talked with him.—A. Neither the one nor the other. I then had never seen anythin^ to shake 
my confidence in his integrity, and I treated him from the beginning to the end as I would 
any upright judge. I made my statement of the facts, which the judge seemed to receive as 
correct, without calling any of the witnesses that I had brought, and he immediately sent for 
Hardy, and gave Hardy the order that it must be rectified. 

Q. What did Hardy reply.—A. I do not know that he made any reply, except to assent 
to what the judge said and that he would hunt up the cotton. 

Q. Did they or did they not make an effort to hunt up the cotton, to your knowledge.—A. 
Not to my knowledge. My opinion is that neither the marshal nor the deputy marshal 
believed that there was a pound of the original cotton in the city at that time. 

Q. Did either of them justify or attempt to justify themselves from the charge you were 
making.—A. I simply charged that while the cotton was in the custody of the court it had 
been stolen. I did not charge the theft upon them. 

Q. Did they try to justify or exculpate themselves.—A. Not at all. 

Q. You said that the cotton had been stolen by somebody, and although you did not 
directly charge it against them they might have attempted to justify it; did they attempt to 
do so.—A. No; they had no conversation whatever on the subject. 

Q. Did they, at any time, deny the knowledge of the fact that the change had taken 
place.—A. No; they treated it precisely as if it was too notorious a fact to question or gain¬ 
say, and the only question was, how it should be settled. 

Q. Did they attempt to justify their conduct, or make any apology for it.—A. Not a par¬ 
ticle. I did not ask them for any apology. I simply demanded that justice should be done, 
and I think it was finally done. I told them at the start that I was not after the thieves; 
that they had stolen Williamson’s property, and that I simply wanted pay for it. 

Q. This $9,000 or $10,000 which was accounted for to you—was it intended to be the full 
value of the cotton, less the execution which had been paid.—A. That was the full value 
of the cotton. I advanced the money for Williamson to pay the execution, and I took my 
pay out of the gross sum which I received for the cotton. 

By Mr. Semple : 

Q. Was it necessary for any honest purpose to remove the cotton from the Planters’ ware¬ 
house, where you had stored it.—A. The fact of its being removed was the cause of my 
distrust. As soon as I learned it had been removed I suspected that there was something 
wrong, before the cotton was examined. 

Q Were the proprietors of the Planters’ warehouse reputable men.—A. The proprietors 
were N. W. Perry &. Co., and they were as reputable men as any we have there. 

Q. Was the fact that it was removed to the custody of Hammond & Co. an occasion of 
suspicion being entertained by you.—A. I did not know where it was removed to. The 
simple fact that it was removed was cause of suspicion. The cotton was in good condition, 
and was stored in a fire-proof warehouse convenient for business. It was in safe hands and 
it was insured, and there was no earthly honest reason for its removal. In addition, it was 
hauled away from the direction in which it would have to go to be shipped. 

Q. You were directed to make the motion to the court for the delivery of the cotton.—A. 
Yes. 

Q. Were you told as to whom the motion should be made against.—A. Yes; against 
those w r ho had the charge of the cotton—William P. Hammond & Co. That was the advice 
of the judge. 

Q. Why did you not make application to have the marshal deliver the cotton to you.— 
A. Because I followed the judge’s directions, in order to get pay for the cotton as quick as 
I could. 

Q. Was a lawyer named by the judge to make a motion for you.—A. I asked whom I 
should employ. I mentioned several names; among others Colonel Boyles, a friend of 
mine. He said, “Boyles will do as well as anybody; he is a good fellow and perfectly 
agreeable to me;” and I employed Colonel Boyles. 

Q. Did you know of any relation existing between the judge and this man Palmer.—A. 
None to my knowledge. I have stated that Palmer was a man whom I had never seen, 
and I simply knew him by his bad reputation in that community at that time. 

Q. At the time W. P. Hammond & Co., or one of the firm, agreed to pay you this bal¬ 
ance, did they say anything as to why they paid it.—A. They stipulated that I should give 
them a statement, showing under what circumstances they paid it; saying that they would 
never lose any of the money, and that they must have this statement upon which to base 
their claim upon the parties who would have to pay it. 


252 


Q. Did yon give the statement to them.—A. I did. 

Q. On the hearing of the motion before Judge Busteed did not witnesses show that the 
cotton could not have been changed in W. P. Hammond & Co.’s warehouse.—A. Yes; 
young Hertell, who was clerk of the Hamilton warehouse, stated that they had delivered 
the identical cotton which they had received, and that it had not stopped in their custody 
longer than 48 hours, I think. 

Q. Which Hammond was it that told you he wanted a statement.—A. It was W. P. 
Hammond, the senior partner of the firm. Upon the trial Travis swore that the same cot¬ 
ton which had been hauled from the Hamilton warehouse into the Verona warehouse was 
that which he had tendered to me upon the marshal’s order, and which was not the cotton 
delivered from the Planters’ warehouse. 

Q. The Hamilton and Verona warehouses were under the charge of the same proprietors— 
W. P. Hammond & Co.—A. Yes. 

Q. Did the testimony show whether the cotton had been removed at the instance of the 
proprietors, or by the marshal or deputy marshal; or did it show by whom the order had 
been given.—A. The testimony showed that the responsibility for the removal all lay 
between Jacob Wilson and this man Coleman; that the drays that hauled the cotton 
belongrd to W. P. Hammond & Co.; that was the point that connected them with this cot¬ 
ton more immediately. 

Q. But the order was made by this man Coleman.—A. Yes. 

Q. How far apart were the warehouses.—A. The Hamilton and Verona were not more 
than one or two blocks, I suppose—not over 200 or 300 yards; the Planters’ and the Ham¬ 
ilton were a quarter to a third of a mile apart. 

Q. Did you examine the books at the Hamilton warehouse to see what the marks were on 
the property received.—A. “A. F. W.” was marked on the margin in the books of both the 
Hamilton and the Verona warehouses. 

By Mr. Eldridge : 

Q. What motive could there have been for taking this cotton into an intermediate ware¬ 
house—from the Planters’ to the Hamilton—and leaving it there 48 hours, and then taking 
it to the other warehouse.—A. I could not account for it without knowing the facts; I should 
guess, as you would, except that I am, perhaps, more conversant with the way things are 
done there ; for instance, suppose it was determined to change these 49 bales of cotton, 
parties would commence hauling them out, and in passing by a pickery if they found only 
25 or 30 bales of pickery cotton they would exchange that many; the next day they would 
haul it from the Hamilton to the other warehouse and exchange the balance. 

Q. Could there have been any other than a dishonest purpose in changing the cotton so 
rapidly.—A. It is possible; but I cannot conceive of what that possibility was; my own 
opinion was, from the very moment I heard it was being hauled out, that it •was being hauled 
out to perpetrate a fraud upon the owners; to take it from a place where it could not be 
changed, to a place where it could be changed. 

Q. But all this added to the expense, of course. What would be a reasonable charge for 
removing it from the Planters’ warehouse to the Hamilton.—A. The charge for hauling was 
25 cents a bale, whether tor a long distance or a short; and the charge for storage for one or 
two days was the same as for two weeks; I believe it was $1 that season; so that the 
expenses of hauling and storing at the Hamilton would have been $1 25, and the same for 
hauling and storage at the Verona, making $2 50 a bale additional expense, besides taking 
it from under insurance at the Planters’ warehouse. 

Q. Was it reinsured.—A. Not that I know of. 

Q. Was the Hamilton warehouse in fact closed about the time of the removal of the cot¬ 
ton from it, or very soon thereafter.—A. There was some proof upon the trial that it was 
about to be closed ; I*do not know the fact whether it was closed. 

By Judge Busteed: 

Q. Did you, at any time, communicate to Judge Busteed the facts in relation to this cot¬ 
ton; stating to him your suspicions that Hardy or Wilson were involved in this exchange 
of it.—A. 1 never did ; I stated to the court that I accused no one ; that I was not after the 
thieves, but after the property ; I do not now say that I saw anything suspicious in John 
Hardy except that he was the party through whom the matter was compromised, and that 
\V ilson had charge of the cotton, and that the order was endorsed by him to Coleman; that 
was always an unexplained matter. 

Q. \ou say that Coleman and Palmer were together.—A. They were commonly reputed 
to be. 

Q. What was the character of W. P. Hammond & Co., including Hurtell, (who has since 
died,) as merchants in Mobile.—A. Hammond, so far as I know, had the reputation of being 
a correct man; he was a Scotchman, and had been there a long time ; I hardly know what 
Hurtell’s reputation was as a business man; I never heard that he was a dishonest man; 
but I never looked upon him as a safe business man ; still I hardly know enough about him 
to express an opinion; although he was an old citizen I hardly knew him by sight until he 
joined Hammond in business. 


253 


Q. Who paid yon this $1,800.—A. It was brought to me by young Hammond in a check. 

Q. Did you see Hurtell any time afterwards.—A. Not in reference to this matter; from the 
moment I got Williamson’s money for him I paid no further attention to it. 

Q. You have been asked whether Hardy or Wilson made any exculpatory statements of 
themselves; did they make any inculpatory statements, either of them.—A. No; I have 
stated distinctly that I had no conversations with them other than those I have detailed. 

Q. Now did you perceive in either of them, and if so, in which, any indisposition promptly, 
so far as they could, to put you in the way of remedying the wrong that had been done to 
your pi incipal, Williamson.—A. So far as professions were concerned, they did not; but they 
put me off from time to time, from the close of one season to the middle of the next, and 
until through the judge I had the matter finally settled. 

Q. Was Judge Busteed absent from Mobile then.—A. Yes; for some time. 

Q. There was no judgment actually filed in this case at all.—A. None that I know of. 

Q. Was there any anticipating the judgment; any statement by the judge as to what Ins' 
decision would probably be.—A. There were indications pretty positive as to what the deci- 
sian would be; and upon that they compromised with me. 

Q. Some questions have been asked you which might be intended to create the impression 
that because this motion was made against Hurtel and Hammond, and not against the mar¬ 
shal, the judge had some motive to screen the marshal or deputy marshal; did any such 
fact exist.—A. I cannot say that there ever was manifested a desire by you to screen any¬ 
body. You said that I had the marshal’s order upon the warehousemen; John Hardy told 
me I had better sue Hammond & Co.; I told you most peremptorily that the matter was in 
your court; that the cotton had been stolen while in the possession of the court, and that I 
should look to the court. You told me to enter the motion against Hammond & Co., simply 
as the custodians of the cotton. 

Q. Did the judge appear at any time indisposed to aid you in your efforts to get justice 
done for your clients.—A. I must say that he did not. 

Q. Upon the trial was he not ready at all times to aid you; did he not express himself as 
ready to aid you ; and did it rest in mere expression —A. I have stated what the action of the 
court was ; I got my money. 

Q. When you stated to the judge that you did not propose to change the responsibility and 
take anybody else beside the court for your claim, what did he say.—A. That it was not 
necessary ; that the matter was in the court, and the court was bound to see that the prop¬ 
erty was returned or accounted for. 

Q. You had settled the execution which the marshal had upon the property, and the mar¬ 
shal had promised to deliver you the cotton on which he had levied under the execution; 
why did you not go directly for him, instead of to the warehouse where he had deposited 
the cotton ; was not your claim directly upon him.—A. I did not change it from him; I 
looked to the marshal as the officer of the court; but the judge advised me to go to the 
warehousemen. I told the judge I would not sue Hammond & Co. for this cotton ; a motion 
before the court to enforce directly the order of the marshal upon them was a very different 
thing; it was like a military order, and none the worse for that, I thought. 

Q. Did the judge advise you that you could proceed against the warehousemen in that 
matter without a suit.—A. Judge Busteed advised me to do precisely what was done. 

Q. To have a motion entered for an order upon Hammond & Co. to show reason why 
they had not obeyed the order of the court given by the marshal to deliver 49 bales of 
cotton.—A. Yes. 

Q. Did you not understand that the proper parties for you to proceed against were the 
marshal and the deputy marshal.—A. Not at all. I was convinced that my proper course 
was to look to Judge Busteed and have it righted up by him. 

Q. The question was asked you by Judge Busteed, whether he did anything, or showed any¬ 
thing, which looked as if he wanted to screen the marshal or deputy marshal; now when 
he advised you to proceed against Hammond & Co., did not that have such a look.—A. I 
did not think so. I stated most distinctly to the judge that I was not after the thieves, but 
after the property. 

Q. Did the judge tell you he would make an order upon the warehousemen to deliver the 
property.—A No; he said that he would enforce the orders of the court, and have the 
cotton or the value of the cotton returned to me as soon as possible. 

Q. He made you no promise. — A. He made me no promise further than that justice should 
be done ; that the cotton should be delivered to Williamson, or its value be paid to him; but 
as to any distinct promise or pledge that he would give judgment against Hammond & Co., 
he did not; nor did I care whether Hammond &. Co. paid for this cotton, or who paid for 
it. I took it for granted that in an open trial before the court, the proof would show who 
was responsible ; and I expected the orders of the court would correspond with the proof. 

Q. The same Hammond that paid you the $1,800 was of the firm of W. P. Hammond & 
Co.—A. No, sir; I do not know whether he was or not. It was the son of Hammond who 
brought me the check signed by W. P. Hammond & Co. 

By Mr. Eldridge : 

Q. Did they or either of them ever try to compromise this matter with you.—A. Never. 
Nobody ever offered any compromise to me, either before or subsequent to the time of its 


254 


actual settlement, except John Hardy and Jacob Wilson. The marshal and his deputy are 
the only parties that made any proposition to me. 

Q. Did the judge at any time ever advise you to settle.—A. No, sir; never. I have 
stated from the beginning to the end all that transaction. I treated Judge Busteed as I 
would any other upright judge ; I want that understood. I do that as a matter of justice, 
and such was my opinion at that time. I expected him to do right in the matter, and, so 
far as irregularities in the law were concerned, I did not know or care about that. 

Q. Did you think it was right for you to go to his private room and have this consultation 
with him.—A. I did. 

Q. Did you think it was right for him to advise you what attorney you should employ, or 
to decide on this order, as judge of the court.—A. It was in his court, and the reputation of 
his court was concerned. Yes, I do. I held him responsible for what was done in his 
court, and told him so, distinctly. 

Q. Did you tell him you held him responsible for his officers.—A. No. I said, “ It is in 
your court, and I have a right to look to you that this thing shall be righted in your court, 
and that I should not be expected to look to other parties, and that I would not.” It was no 
secret; I told it without reserve. Some lawyers said to me this is irregular. I replied I 
didn’t care about the manner of its being done, provided the wrong was righted. 

Q. What was irregular.—A. The motion or order was irregular. 

Q. There was not any order made.—A. Well, the proceeding on the motion. There was 
no order of the court made in the matter. There was a motion entered by Boyles against 
Hammond & Co. to show cause why this order of the court for the delivery of this cotton to 
me had not been obeyed. That was in the southern district court at Mobile. It was upon 
that motion entered by Boyles that these parties were subpoenaed and brought into court as 
witnesses. It was agreed that the testimony then taken in Mobile, in the southern district, 
should be considered as the testimony in the case to be adjudicated in the middle district, and 
that the argument should be either oral or in writing, but that the decision should be made 
at Montgomery, the middle district. But no such proceeding was had, and I understand no 
minute or memorandum was kept of the matter at all, and no order ever appeared that I 
know of; I can simply state as far as I know. When the testimony was made, and the 
judge indicated what his decision would be on the facts as proven, he left a day or two after 
for Montgomery, and then it was that Hardy came to me and proposed a settlement or com¬ 
promise of the matter. 

By Judge Busteed : 

Q. He stated the parties wanted to compromise—A. Yes, sir; but did not state who the 
parties were. 

Q. Do you recollect whether the order did not run for Hurtell and Hammond to show cause 
why they should not comply with a certain order made by this court in the case of the United 
States against 57 bales of cotton, 1,000 bushels of corn, and certain sacks of grain, to which 
A. F. Williamson was claimant.—A. Very probably that was the wording of it; that was 
the substance of it. 

Q. You were examined yourself as a witness in this motion.—A. Yes ; to show that it was 
not the same cotton. 

Q. Do you recollect testifying that you received from the marshal about the 23d of June, 
1866, an order on the warehouse of Hurtell and Hammond for 49 bales of the original 57 
bales taken from the Planters’ warehouse by the order of the court, and claimed to belong 
to A. F. Williamson.—A. O, yes; that is the fact, whether I testified to it or not. 

Q. And testified that you made the demand on the Verona warehouse under this order for 
those 49 bales.—A. Yes, sir; that is the fact. 

Q. And that you were satisfied from the samples shown you, when you made that order, 
that what they offered you was not your cotton.—A. Yes, sir; and that I subsequently 
examined it. 

Q. You say you subsequently examined the cotton : at the request of Adams & Co.—A. 
At my own instance. 


Washington, D. C., February 3, 1869. 

Jones M. Withers, recalled. 

By Judge Busteed: 

Question. Did you, as mayor, at any time during your administration of the office of 
mayor of Mobile, banish any person, white or black, out of the city of Mobile as a punish¬ 
ment for any offence against the charter, the ordinances, or the laws.—Answer. I do not know 
that I can properly answer that question categorically. I can show you why I cannot. I 
was elected mayor first in 1855. There was an ordinance then, and subsequently, under 
which dangerous and suspicious characters and persons of evil life and ill-fame could be 
put under bond by the mayor for good behavior, to protect the city from damage or expense 
by vagrants or notoriously bad people. The object of the ordinance was to protect the city 
against the influx of vagrants and paupers of other localities who did not properly belong 
there, as well as against pickpockets and burglars who came to New Orleaus and the other 
southern cities in the winter time. Under that ordinance, when a party came up and was 


255 


found to belong to that class, or were wholly without the means of living and would entail 
upon the city expense, or threatened the peace, good order, and property of the city, not 
being residents, they could be put under a bond for good behavior, and in the event of not 
giving the bond they could be confined 30, 60, or 90 days, or they could be sent from the 
city. My practice under it was to free the city as quickly as possible of all expense and 
care of these people by giving them the option of giving the bond, going to prison, or leav¬ 
ing the city. I do not recollect that any negro was before me. The ordinance was passed 
in reference to white men. They generally, and I think invariably, elected to leave the city ; 
and having so elected, I simply put on the docket, for instructions to the police, “ leave the 
city.” 

By Mr. Eldkidge: 

Q In the administration of your office as mayor, were you in the habit of entering an 
order that they must either give bail, go to jail, or leave the city.—A. I cannot say that I 
entered it on the docket so. I was in the habit of giving such orders, that they had either 
to give a bond, go to prison, or leave the city. 

Q. How many such cases.—A. I was mayor from 1855 to 1861, when I resigned and 
joined the army; and from December, 1865, until the following spring, when I was turned 
out by the military and Mr. Horton put in ; I reckon in that time 100 at least. It was a 
common thing, because there were a great many of that class of people; sometimes there 
would be three or four of a morning. 

By Judge Busteed: 

Q. This ordinance or statute referred, as I understand you, to the cases of non-residents of 
Mobile.—A. I so always acted under it, as intended for non-residents. 

Q. Persons within the city who had no visible means of support.—A. Yes, and non-resi¬ 
dents. That was my clear interpretation of the statute, and that was my action under it I 
know. 

Q. And you invariably gave them the choice between giving a bond, going to prison, or 
leaving the city.—A. Yes, sir; and that was the order, and that was my practice under it. 

Q. Supposing they did not elect to go out of the city.—A. I sent them to prison irnless 
they gave a bond for their good behavior, and that they would not be chargeable to the 
city. Upon that bond they were turned loose. If they didn’t give that bond, which was 
deemed sufficient for the protection of the citizens, they would be sent to prison for the time 
specified in the order, and when they came out, if they showed no better character than they 
had done before, I have no doubt I should have repeated it until they had either given the 
bond or quit the city. I never had such a case before me, though. They usually elected to 
leave the city. 

Q. Did you ever send any of them out by the police.—A. No, sir; I always gave them 
the option, but I didn’t turn them loose. I always instructed a policeman to see that they 
carried out their decision to leave the city. I did not turn them loose until they did leave. 
By Mr. Smith : 

Q. The entry you made on the docket was “ to leave the city.”—A. When they elected 
that I generally put down “leave the city;” and I think that entry would be found on the 
old docket. It was my instructions to the police. 

Q. There was no more formal entry of the judgment.—A. No, sir; it was merely a 
memorandum. It was not a court of record. My simple entry in such cases would be 
“ leave the city.” 

Washington, D. C.> February 1, 1869. 

Thomas A. Hamilton sworn and examined. 

By Mr. Semple ; 

Question. Did you attend the court at the time that the examination into the motion at the 
suit of A. F. Williamson against W. P. Hammond & Company was had.—Answer. Against 
Hurtel & Hammond; yes, sir. 

Q. State what took place upon that trial.—A. I went into the court at about 12 o’clock on 
or about the 15th of February, 1867, simply for the purpose of looking out for my own busi¬ 
ness. I do not know that I had anything coming up that day; but I had to watch the 
court, as I did not know what might come up. Shortly after going into the court-room the 
judge took his seat, or he may have been on the bench when I entered; I am not certain 
about that. Shortly after I went into the court-room, the judge took the motion docket and 
called the motion of A. F. Williamson against Hurtel & Hammond, which was a motion 
for a rule on Hurtel & Hammond to show cause why they had not delivered 49 bales of 
cotton, I think, to A. F. Williamson, pursuant to the previous order of that court. This was 
the district court of the southern district of Alabama. Mr. Boyles responded in behalf of the 
motion, and said he was ready to go on with it. Mr. Hurtel, one of the firm of Hurtel & 
Hammond, was in court, and the judge asked him if he was ready. He said he had a wit¬ 
ness in court to prove the delivery of the cotton, and he supposed he was ready. The judge 
asked him if he had any counsel. He said he had »ot, and did not think he would require 


256 


any. The judge told Mr. Boyles to go on. Boyles commenced then to read some affi¬ 
davits—one of General Withers, I think, and may be others. I was sitting a little distance 
from the clerk’s desk, and Mr. Hurtel came around and took a seat by me He addressed 
some such remark as “ What do you think of that, Mr. Hamilton ?” I said, “I do not know, 
Mr. Hurtel ; haven’t you got any lawyer?” He said he had not. He went on to say that 
he had been served with notice only about 10 o’clock that morning. I said, “I think the 
first thing you ought to have done was to employ a lawyer.” He said, ‘‘It isn't too late 
now, is it ?” I said I didn’t know about that. He desired me to take charge of the case, 
and I made some inquiry about who was his regular counsel. He said he didn’t have any. 
I then got up and made a motion to the court, (this was on Friday, according to my recollec¬ 
tion, and I do not think I am mistaken)—that is, I told the court I had just been spoken 
to by Mr. Hurtel about the case; that I knew nothing whatever about it, and desired that 
the case might be laid over until the following Monday morning. The judge said he had to 
be in Montgomery on Monday morning, and declined to lay it over. I then asked him to lay 
it over until the following (Saturday) morning. I do not know but that he said something 
about Hurtel’s having announced himself as ready; but he s* id the case must go on. Mr. 
Boyles proceeded to read his affidavits. After he got through reading them, I think I again 
asked that the case might be laid over until the next morning, which was also declined; I 
then asked for the opportunity of talking a few minutes with Hurtel The judge said ‘‘Cer¬ 
tainly,” and I think asked how long a time I wanted. I told him I did not suppose I should 
want a very long time. I retired into another room, and, after talking with him a very few 
minutes, I found that he did not seem to know much more about the matter than I did. I 
had learned something about it from the reading of the affidavits—that it was an attempt to 
charge Hurtel & Hammond with the value of the cotton, 49 bales, which, it was alleged, had 
been deposited with them as warehousemen in the city of Mobile, and, while in their posses¬ 
sion, that inferior cotton had been substituted for it in a way which made them liable for the 
damages sustained thereby by the plaintiff. I went back into the court, and the case pro¬ 
ceeded. I got from Mr. Hurtel the names of all the parties who had been connected with the 
Verona warehouse, so far as I could, and as the case progressed during the day I got the 
names of everybody, so far as I could, connected with the warehouses—the Verona and the 
Hamilton warehouses; and I got from the clerk, if I recollect right, subpoenas for every¬ 
body I could find as having been connected with these warehouses, and sent them out. 
Young Mr. Hammond also came in—I do not remember his first name—and I got him to go or 
send for these witnesses, and have them brought in as the case progressed. The case was forced 
on—that is, it was carried on without intermission until dark; then the judge called for 
candles. It so happened that the marshal had gone away with the key of the room in which the 
candles were locked up, and they could not get them, and the court adjourned. I went to 
my office anxious to have some inquiry into the law of the case, which I had had no oppor¬ 
tunity of examining. But there Avas to be company at my house that night, and I was very 
anxious to get home ; and I sent to Judge Jones—having noticed him in the court-room 
during a part of the afternoon—and begged him to join me in the case. He declined, how¬ 
ever, as he said he did not know enough about the case. I then sat down and wrote an 
answer to the motion for a rule, setting up particularly the want of jurisdiction in that court, 
it having appeared in the course of the day that the order—if there ever was one—for the 
surrender of this cotton, had been made in the case pending in the district court of the 
middle district of Alabama, and that nothing had been done in the district court of the 
southern district of Alabama up to this time in connection Avith the case. I do not remem¬ 
ber the other grounds except this one of the denial of the jurisdiction of the southern dis¬ 
trict court to proceed Avith that motion. The court, by the Avay, had adjourned until nine 
o’clock, the next morning (Saturday.) I was up nearly all night, and Avent there at nine 
o’clock, and asked the court for leaA’e to file this answer. The court allowed the answer to 
be filed, but declined expressing any opinion about anything in it. I think I moved at the 
same time to dismiss for \\ r ant of jurisdiction, AA r hich was refused. I then insisted that the 
defendants were entitled to a jury; Avhic.h the court also refused. The case then A\ r ent on, 
and about one o’clock, I think, all the evidence I could get under the pressure was in, and 
I had no more to say. I had tried to get a postponement, but could not, and about one o’clock 
the eA'idence being stated as being through with, Judge Busteed stated, as to the paper I 
had filed, ‘‘1 think, Mr. Hamilton, your objection to jurisdiction is Avell taken.” There Avas 
some conversation then, and the judge after a little while remarked that unless I would waive 
the jurisdiction of the court he Avould issue a rule, if the counsel for the other side applied for 
it, (which they said they would then) returnable on the folloAving Monday morning in Mont¬ 
gomery, and would require me, the defence, and their witnesses, to be present in Montgomery 
on Monday morning and go on with the case then: I asked his honor until three o’clock to 
consider Avhat I would do. He said no, he would give me fifteen minutes, and required me 
to sign it in writing. Under these circumstances, and in vieAv of the physical impossibility 
of my getting all these witnesses to Montgomery at that time, as a choice of evils, and feeling 
myself powerless, I told him I Avould consent to waive jurisdiction. After a little, he said tha't 
upon reflection he Avas brought to doubt whether the court had jurisdiction, or whether my con¬ 
sent would give jurisdictino, and asked me what I thought of it. I told him I did not thiuk 
it would. He then said that, to relieA^e the parties from the embarrassment of going to Mont- 


257 


gomery with their witnesses, we might agree that the testimony taken on this and the previous 
day should be used in the case at Montgomery, and if we consented to that, lie would not require 
us to go to Montgomery. I told him that, provided all the objections I had made,the jury 
question and all, and also any question I might have as to the jurisdiction of the district 
court at Montgomery, could stand, I would give my consent. He said no, he did not want 
any questions of jurisdiction upon the record. That is my recollection. I then wrote out 
and signed my consent, and Mr. Boyles did the same; of what happened in the case after¬ 
wards, I have no personal knowledge. 

Q. You know nothing about the settlement.—A. Not of my own knowledge. My informa¬ 
tion was in the course of the trial that Mr. Coleman, who was in New Orleans, had been 
connected in some way with it, and that a man named Palmer- 

(Judge Busteed objected to further details on this point. Objection sustained.) 

The Witness. In the course of the trial I thought that I showed by everybody about the 
warehouses of Hurtel and Hammond that the cotton that had gone there was what had gone 
out; and the evidence developed that a man by the name of Coleman was the man who saw 
the cotton into Hamilton’s warehouse, and who came with an order to take the cotton from 
the Hamilton warehouse to the Verona warehouse. My recollection is that the order (which 
was produced in evidence) upon which Coleman got the cotton from the Planters’ warehouse, 
which was the one befoie it went to the Hamilton warehouse, was an order in favor of the 
United States marshal, and by the United States marshal’s chief deputy, John Wilson, 
endorsed to Coleman. I made some inquiry with reference to Mr. Coleman’s having been 
a deputy marshal, and my recollection is that Judge Busteed wanted me to examine Hardy, 
the marshal, upon that point, which I declined to do. Later in the day I proposed to exam¬ 
ine another witness as to whether at or about the time of this transaction Coleman had not 
been in charge of cotton as the deputy and representative of John Hardy, the marshal, and 
the judge refused to allow me to make that examination. That was, I think, towards the 
close of the case, on the second day. The witness, I think, was John C. Buford. 

By Mr. Eldridge : 

Q. In what form did you seek to make that inquiry.—A. The witness was upon the stand, 
and the questions that I asked him were whether or not he knew anything of Gf. P. Coleman 
having been in charge of cottons—other cottons than these—at or about the date of this trans¬ 
action, (in May, 18bb, I think,) as the deputy or representative of the United States marshal— 
of cotton seized by him as the United States marshal; that was about the point of inquiry. 
That the court would not allow me to make, and I excepted to it. I do not remember any¬ 
thing else in particular upon the examination, excepting in regard to one witness. There 
was one witness, a young man by the name of Charles Hurtel, a son of the Hurtel who was 
one of the partners of Hurtel & Hammond—a right young man, not likely to be in a court 
of justice much—and the counsel for the mover cross-examined the witness, and then Judge 
Busteed took him and, in my judgment, put him through the severest cross-examination I have 
ever seen. The particular point of his severe cross-examination was upon a memorandum- 
book that the young man kept, as he said, as a yard book—a sort of blotter to make the entries 
in of the current business of the yard as it went along. It seemed from the evidence that this 
cotton had been brought in there by this Mr. Coleman and put first, I think, in his name, and 
then changed to somebody else’s name, and then changed again to a third name. This yard 
book was to show the current dealings in the yard with regard to the cotton that came in ^ 
and Judge Busteed examined him, as 1 thought, with very great harshness and severity, based, 
apparently, upon the idea that this book should have been kept as though it was an old book¬ 
keeper’s ledger, who prided himself upon the neatness of his book, where there were no eras¬ 
ures or alterations to be made. 

Q. Did he give any material evidence as to any point.—A. His evidence was about this: 
that the cotton came in his warehouse, of which he was yard-clerk, on or about the 21st of 
May I think ; that it staid there three or four days; and that the same cotton that came in 
there went out of there on that third or fourth day. That was the Hamilton warehouse. It 
was material testimony in that shape. My aim was to show by all the parties in these ware¬ 
houses, as witnesses, that they knew the cotton in the particular warehouse they were con¬ 
nected with, and that it had come in there at a certain time, aud while there was kept as any 
other cotton, and then passed out. 

By Mr. Churchill: 

Q. Did this book show the change in the names.—A. I think so; yes, sir. 

By Mr. Eldridge : 

Q. Did you take any exception to the order requiring these warehousemen to show cause why 
they should not produce the genuine cotton, instead of the application being directly upon the 
marshal to produce it.—A. You will observe I knew nothing about the case until I was pushed 
into it in this way. 

,Q. Did you or not take the point that the proceeding should have been against the marshal 
instead of against the warehousemen.—A. No, sir; I do not think I did; I insisted that the 
court had no jurisdiction as against these warehousemen ; then I relied upon the evidence in 
the case to show that they had done their whole duty. 

17 B 



258 


Q. Did you take the point that they were not parties to the suit, had not been served with 
process, and were not amenable in that action.—A. That point was raised, I think, in my 
argument to the court; that is, the written argument I submitted. 

Q. They were not parties to that suit.—A. No, sir ; not in any way, shape, or form—that 

is, in the suit in the middle district—so far as I ever heard. 

Q. Their liability, if at all, would have been for an independent action.—A. Precisely. 

By Mr. Churchill : 

Q. In what suit was this a proceeding.—A. Well, sir, you will observe I never saw the 
original proceedings ; but the motion was made as being a rule against these parties to show 
cause why they had not delivered certain cotton to A. F. Williamson, in pursuance of the 
order made in that court—the district court of the southern district of Alabama. There was 
no such order there, but as the thing went on I think it came out upon a question of Judge 
Busteed’s to Hardy, the marshal, that there had been a suit in the middle district of Alabama, 
in the name of the United States, against the 57 bales of cotton and some corn-sacks, in which 
A. F. Williamson was claimant. 

Q. Did the papers show it.—A. I have a copy of the motion which was served on my 
clients. 

(Paper referred to was here shown to the committee.) 

By Mr. Eldridge : 

Q. Was there any order produced, either certified or otherwise, of the kind referred to in 
these proceedings; was that previous order produced.—A. No, sir. 

Q. Was any order shown whatever.—A. The only order shown was the order for the cotton, 
from Withers, Adams & Co. on the Planters’ Press, or the Planters’ Press warehouse, in favor 
of the United States marshal, and by him transferred to G. P. Coleman. There was no court 
order produced of any sort. It was a mere business order, I suppose, like the ordinary cot¬ 
ton orders used in Mobile. 

Q. What pretence or what view was there that would justify proceedings against these 
warehousemen.—A. I do not think there was any; and as soon as I got to my office and 
had time to examine the case, the first question raised in my mind was the want of jurisdic¬ 
tion of the court over these parties. 

Q. What points or objections did you take besides that of jurisdiction, that you recollect. 

I want you should state from your memory what they were, though you may refresh your 
recollection from any memorandum that may help you to do it, if, when you come to look at 

it, you can state that you made those points.—A. I do not know that I could answer from 
recollection what the points were that I made, further than the setting up that the court had 
no jurisdiction to go on against these parties. I see by this paper [referring to a memo¬ 
randum] certain points which I have no doubt I made; but I cannot state that I remember 
them outside o f the paper. 

Q. Did you take the point that the judge could not determine the question of their liability 
in a suit to which they were not parties.—A. I think that was one of the points—that they 
were no parties to that suit or proceeding under which it was alleged that this order had been 
made. 

Q. Did you take the point that they should have their day in court before their interests * 
were disposed of.—A. Not specifically; that is, if you mean by that that they should have 
their 20 days, as the ordinary time is under our practice. I think the general points were 
that they were no parties to this suit, that they had no notice of any such order, that that 
court had never made any such order, and generally stating the grounds upon which I 
thought the court had no jurisdiction. There was a doubt in my mind as to'whether the 
district court of the middle district might not possibly have jurisdiction at that time. 

Q. Was the petition entitled in any cause.—A. There was no petition ; there was a mere 
motion. 

By Mr. Semple : 

Q. Did you follow the case to Montgomery, or was it ever disposed of in Montgomery, or 
did anything happen to prevent its being disposed of in Montgomery at the time fixed.—A. 

I wrote immediately to Montgomery, to Governor Watts or his firm, detailing the circum¬ 
stances, and sent to him an answer to be filed in that district court, in which, under the 
agreement that I considered myself forced to sign, I do not think I set up the question of 
jurisdiction. I wrote to Montgomery to have it attended to, but what occurred afterwards 
would be hearsay or correspondence, so far as I am concerned. 

Q. Did the judge go up to Montgomery.—A. I think the judge went up to Montgomery 
later in the week. 1 do not think he was in Montgomery on Monday, but I think it possible 
that he did go on Monday or Tuesday. I made some inquiry, and what I know is only 
hearsay. 

Q. Was Mr. Hurtel, who was examined as a witness, a partner in the house of Hurtel &, 
Hammond.—A. Not that I ever heard of or dreamed of. 

Q. Is he living now.—A. Yes, sir; he was a few days before I left home. # 

Q. Was there anything in his (Hurtel’s) comportment or the character of his testimony to 
induce the judge to interfere and give him such a rigid cross-examination—A. I do not 
think there was. 


259 


By Mr. Churchill : 

Q. \Y as there any other examination in that case which showed a disposition on the part 
of the judge to screen either Hardy or Wilson, or to prevent anything coming out which 
should inculpate them.—A. Would not that be a matter of inference. 

Q. If there is any fact which, in your mind, showed a disposition of that kind, or the 
desire on his part to prevent evidence coming out which would inculpate either of these 
men, you may state it.—A. I do not know that I could state anything except the facts which 
I have detailed as far as I can recollect, except perhaps that he did cross-examine another of 
the defendant’s witnesses, whose name I do not now remember, pretty rigidly, but not near 
as severely as Chas. Hurtel. Impressions produced on my mind are, of course, another thing. 

Q. Can you state anything more than you have stated.—A. There is an impression on 
my mind that at one time, when I w r as proposing to examine about Hardy’s connection with 
this matter, the judge stopped me and wanted to know the materiality, and I told him (I do 
not state this as a positive recollection) it did not make any difference to me whether it was 
Hardy, or who it was, that got this cotton ; that I wanted to show that it was not the busi¬ 
ness or fault of the warehousemen, and he stopped me from going on. But I didn’t know of 
course what was in the judge’s mind. I know I was very anxious to find out who it was. 
Well, perhaps, I should state this : that it is my impression that once in the course of the 
examination the judge stated to me—I do not know how it happened—he called me up to 
the bench during some recess, and said something about some rascality about these matters, 
and I think Palmer’s name was mentioned, and he said he was going to work to find out who 
the parties were. I did not think he was taking the right way to find out. 

Q. The object of the testimony of this young Hurtel was to show that the cotton was not 
changed in the Hamilton warehouse.—A. Yes, sir. 

Q. And the course of the examination of the judge was to ascertain whether or not, in 
making that statement, he had not misstated or was not mistaken.—A. Well, sir, the judge 
had a way of his own in doing things, but I must confess I did not think his examination 
of Charles Hurtel was calculated to elicit truth, nor do I think it was intended to elicit truth. 
It looked to me like an intention to bother and confuse the witness ; why, I do not know. 

Q. Hurtel was called by yourself, and his testimony was offered for your clients.—A. 
Yes, sir. 

Q. Suppose that the judge had in any way received the impression from the examination 
of this young man, that he was not telling the truth or the whole truth, was his cross-exam¬ 
ination such a one as would have been justified by such an impression in his own mind.— 
A. Well, taking it for granted, as should always be the case, that the judge is impartial, and 
anxious only to arrive at the truth, if he finds a witness that he is justified in thinking is 
prevaricating or equivocating I do not doubt he would be authorized to resort to as harsh a 
cross-examination as Judge Busteed put that young man through. But there comes the 
question. I do not think that Mr. Charles Hurtel’s examination had been of that character 
that there was any warrant for the judge’s taking any such an idea. His testimony was, so 
far as I saw, the testimony of an honest, modest witness ; I should suppose him rather timid, 
and rather easily bothered. 

Q. Did the judge interfere at all with your own examination of this witness, and your 
efforts to get at what he knew, befoi’e him on that occasion.—A. I do not recollect that he did. 

By Mr. Semple : 

Q. Did you attend the trial of the United States vs. Horton, under a violation of the civil 
rights bill.— A. I was present during a considerable portion of it. 

Q. Will you state anything in the course of that trial tending to show that the judge was 
actuated by a desire to oppress and punish the accused, Horton ; for instance, the exclusion 
of any evidence tending to show that Horton had not discriminated against Johnson be¬ 
cause of his color. 

(Question objected to by Judge Busteed, and objection sustained by the committee, except 
as to the latter part of the question.) 

A. I was present when there was evidence excluded which I thought was material to the 
defence under my recollection of the form of the indictment. The evidence was offered tend¬ 
ing to show that it had been the custom of previous mayors—I think, also, of Mr. Horton— 
to impose a similar punishment upon whites as that which he imposed upon Archie Johnson, 
and the evidence was excluded. My recollection is that that evidence was competent under 
the form of the indictment, in my judgment of course. My recollection of the form of the 
indictment is that he was indicted for inflicting this punishment upon Archie Johnson on 
account of his race, color, or previous condition. I was there during a considerable part of 
that trial. 

Q. Will you tell the committee -whether you recollect anything in relation to a motion for 
appraisement, and to be allowed to give a stipulation for the property in the Natchez case.— 
A. I was in court one morning when my brother, Peter Hamilton, made a motion to his 
honor Judge Busteed, in behalf of the claimants of the cotton then libelled, to be allowed 
to take the cotton upon giving a stipulation or stipulations, and to an amount or amounts 
that had been agreed upon (between the proctors for libellants and the respondents or claim¬ 
ants. That motion was refused ; it had been customary, previously, to take stipulations in 


2(30 


that way. I then said to my brother: “ Now, move for an appraisement of the cotton, and 
that you be allowed to give stipulations for the appraised value, because that he cannot re¬ 
fuse.” He hesitated, and I got up myself and made the motion. The judge replied : “ We 
will not take up that motion now, but we will take up another docket or another case ; ” and 
that ended my connection with that matter. I was in other courts afterwards, and had no 
personal knowledge of anything further regarding it. 

Q. You know that the motion was made to be allowed to take the cotton upon giving 
stipulations for its appraised value.—A. The motion was made that the cotton be appraised 
with a view of our giving stipulations for the value it might be appraised at. 

By Mr. Churchill : 

Q. And that motion was not decided.—A. The judge refused to hear it at that time. 

By Mr. Semple : 

Q. Do you know anything as to the fees required by the officers of the court—the register 
in bankruptcy—upon the proofs of claims before them in Mobile; Mr. Worrall is register in 
bankruptcy in Mobile.—A. Yes, sir, he has been, and I suppose is still. I only remember 
certainly one instance where I applied to Worrall to tile a claim ; I think it was in the bank¬ 
rupt estate of Davis, Hall, & Company ; I think I went with one of the parties, and I 
know that I inquired of Worrall what his charge was ; my recollection is, too, that I had 
filled up the blank myself, and took it up for him to swear the party to it; and he said “ five 
dollars.” I remonstrated, and told him I thought that was too much ; he said no, it was a 
deposition. I then turned, I think, to the statute of the United States establishing the fee 
bill, (not the order or rule which I have seen since by the Supreme Court on this particular 
subject,) and I found that taking a deposition was 25 cents a hundred words; I think that 
was the allowance. I said, there are the fees for this; he remarked : “Why, we couldn’t 
live without these charges for these depositions,” or a remark to that effect. 1 cannot be 
certain, but I think my client paid the money and left; but as to that I cannot be positive. 
I went there for that purpose, I think, and it was that particular conversation that I remem¬ 
ber specifically and positively. 

Q. Do you know Mr. Bailey, assignee in bankruptcy.—A. Yes, sir. 

Q. Do you know of considerable estates being put by him or Worrall into the hands of 
Jacob Wilson.—A. Not of my own knowledge. 

By Judge Busteed : 

Q. Was there any judgment of court entered in this case against Hurtel and Hammond.— 
A. Not that I know of. 

Q Do you not know that there was not.—A. I cannot say that I know that as a matter 
ot fact, because I have never examined the record. I have understood there was not. 

Q. You did not ask leave to file an answer until the 16th of February.—A. I did not. 

Q. Did not Mr. Boyles object to the paper you presented on the 16th of February, 1867, 
and say it was not an answer, but a plea to jurisdiction.—A. I do not think he did; but I 
would not be positive. 

Q. Was not your motion to dismiss for want of jurisdiction addressed solely to the fact 
that the motion was being heard in the southern district when the matter arose and was tried 
in the middle district. —A. 1 think not. The motion to dismiss for want of jurisdiction, I 
think, embraced the whole ground set up in the answer; but as to that 1 will not be certain 
either 1 was entirely satisfied that the court did not have jurisdiction. 

Q Will you state that you made any motion in this proceeding against the jurisdiction of 
the court over the parties because they were not parties to the original record.—A. I think 
that was one of the points presented, that they were not parties to the proceeding. 

Q. Is it not in your memorandum there.—A. I think it is. 

Q. [Memorandum produced.] When was this paper prepared.—A. I think in all proba¬ 
bility that, is my first draft ot the answer, which, as you objected to papers being presented 
with erasures or interlineations, I presume was copied by a young man in the office. This 
paper is in my handwriting. 

Q. Is not the tilth article in these words : “ Fifth. They respectfully state they have never 
been parties heretofore to any proceeding in the cause upon whi deny that any state of facts 
exists which is sufficient to give jurisdiction to this honorable court to proceed in the manner 
asked for by said A. F. Williamson in this behalf.”—A. I think so. 

Q. And are not the following words stricken out: “state they have never been parties 
heretofore to any proceedings in the cause upon whi.”—A. It appears so. 

Q. So that as it stands it will read: “Fifth. They respectfully deny that any state of 
facts exists which is sufficient to give jurisdiction to this honorable court to proceed in the 
manner asked for by said A. F. W illiamson in this behalf.” Were the words “ they have never 
been parties in any proceeding upon which” stricken out by yourself.—A. In my draft, yes 
they were. 

Q. Is there anything in your written paper upon which a motion to dismiss the proceed¬ 
ing was predicated upon the tact that there was no jury.—A. There was nothing in this 
answer in regard to a jury which I now perceive. 

Q. "iou did make that objection, however.—A. I insisted that we were entitled to a jury. 


261 

Q. Did not you insist as a reason for that because the matter involved more than $20.—A. 
Yes, sir. 

Q. Do you recollect the course of argument that you pursued in answer to what Mr. Boyles 
said respecting the plea you put in.—A. As I said, I do not recollect that Mr. Boyles made 
any objection. I am not positive that he did not. As to any argument he may have used, 
of course, I do not remember. 

Q. Do you recollect that Mr. Boyles argued in reply to the allegation that the proceedings 
were had in the middle district, and sought to be enforced in the southern district; that it is 
enough to say that the property is here, the parties are here, and the court is here.—A. I do 
not. 

Q. And that the district judge of the middle district is, in fact, judge of the whole State.— 
A. I do not recollect any argument of Mr. Boyles upon the subject. 

Q. Do you recollect yourself arguing that this was a controversy between citizens of 
the same State.—A. No, sir ; I do not recollect the argument. 

Q. Do you recollect whether or not you did argue that it was a controversy between citi¬ 
zens of the same State.—A. I do not. 

Q.. Do you recollect whether you argued that the only jurisdiction the court could have 
was where the respondents were bailees of the court.—A. I have said I do not recollect any 
argument on that subject. 

Q. You have spoken about the examination of Buford ; was not your proposition to show 
by him that the United States marshal employed G. P. Coleman about the Natchez cotton 
cases, and to show from this inferentially that the marshal had connection with these 57 bales.— 
A. No, sir; I asked that question in reference to the Natchez cotton, and it was answered. 

I then proposed to ask whether G. P. Coleman at, or shortly before the time of this trans¬ 
action, was placed in charge of other cottons by the marshal, seized and held under process 
of this court as his representative. That was excluded aud I excepted. 

Q. The statement you have just made was from your minutes.—A. Yes, from my minutes 
made at the time. 

Q. Do you recollect in the Natchez cotton case a stipulation was allowed to be taken for 
more than half the cargo which was saved.—A. I do not, of my own knowledge. 

Q. You were partner with Peter Hamilton and your firm proctors for claimants.—A. Yes. 

Q. And do you not know, of your own knowledge, that a stipulation was taken for half 
the cargo.—A. I do not know, of my own knowledge, that a stipulation was taken for half 
the cargo. 

Q. Or for any part of it.—A. Of my own knowledge, I do not know a stipulation was 
taken for any part of it. What I do know at all would be from my brother. 

Q. You are his partner.—A. Yes, sir. 

Q. And were then.—A. I was during that litigation. 

Q. Are you able to state, from your professional relationship to your brother, whether a 
stipulation was not taken for 460 odd bales sold under the management of Mr. Secor.—A. I 
remember hearing that some of the botton was sold outside of the court, and therefore, I 
suppose, a stipulation was given. 

Q. Have you any more doubt of that fact than you have of your physical being at this 
moment.—A. I am satisfied that there must have been a stipulation given, for the reason I 
have stated. 

By Mr. Semple : 

Q. Do you remember whether there was any proof on the hearing of that motion, that 
the property was in the district of Mobile at the time the motion was made. —A. I had no 
doubt that 49 bales of the same cotton embraced in that middle district proceeding had been 
brought to Mobile. 

Q. I am speaking now of the time of making the motion. Was there proof to show that 
it w r as there at the time the motion was made.—A. The proof was that the cotton came to Mobile 
which the proof tended to show the proceedings had been against in the Montgomery dis¬ 
trict; that that cotton had gone into the Planters’warehouse, and that afterwards either it 
or some cotton substituted for it had gone to the Hamilton warehouse, and from there, either 
it or a substitute for it, to the Verona warehouse. All these three warehouses were in Mobile. 

By Mr. Churchill: 

Q. Was any question made that the cotton was not at that time in the southern district — 
A. I think not. I desire to state with reference to the point about which Mr. Eldridge asked 
me, that upon looking over my memorandum I do not find that the distinct point seems to 
have been specifically and separately presented in the answer to the Williamson motion 
that Hurtel and Hammond had been no parties to the proceedings in the middle district. 

By Mr. Eldridge: 

Q. Did it appear in that case what the proceedings in the middle district were, whether in 
admiralty or at common law.—A. I do not know that it appeared except from the statement 
of John Hardy, and his statement was to my recollection something like this, that there had 
been a proceeding of the United States against 57 bales of cotton and some other stuff, A. 
F. Williamson, claimant, and I suppose probably it was only a matter of inference upon my 


262 




part that it was a proceeding by way of information for the condemnation of the property at 
the suit of the United States, as liable to confiscation under some of the laws of the United 
States. 

Q. Do you understand that the cotton had been levied on by execution.—A. No, sir; my 
supposition was that it was claimed by the marshal in some way under that information, in 
whatever form it may have been ; that it was claimed to be seized and held by him to abide 
the result of that proceeding. I think, in the papers attached to Williamson’s motion for a 
rule, there is a statement that the information was filed at Montgomery but that the cotton 
was sent down to Mobile, and that it did not appear that the marshal had seized it at the 
commencement of those proceedings in Montgomery, but that Withers, Adams & Co., to 
whom it was sent in Mobile by Williamson, were written to by him that he had given or 
intended to give a stipulation in Montgomery for it. I know nothing of the previous pro¬ 
ceedings in the middle district of Alabama, except as gathered from what occurred on the 
trial of Williamson’s motion against Hurtel and Hammond in Mobile. On the hearing of 
that motion I think an order was produced in evidence from Withers, Adams & Co. on the 
Planters’ warehouse for the 57 bales of cotton in favor of the United States marshal, and 
that this order was endorsed by his chief deputy to Coleman, and that by Coleman’s direc¬ 
tions, eventually, the cotton which went to Hurtel <fc Hammond’s warehouse, whatever that 
was, was stored in the name of the United States marshal. 

Wednesday, February 3, 1869. 

Gustavus Horton sworn and examined. 

By Mr. Smith : 

Q. Are you the man who was tried criminally in Judge Busteed’s court for discriminating 
against Archie Johnson on account of race or color, contrary to the civil-rights bill.—A. I 
am. 

Q. How long have you lived in Mobile.—A. Over 31 years. 

Q. What are your political affinities, and what have they been. 

(Question objected to by Judge Busteed. Question admitted and modified as follows:) 

Q. What has been your action and your relations to the rebellion, and to the course of 
political measures that have followed as consequent upon it.—A. I have always been an 
out-and-out Union man, opposed to the rebellion; and I was imprisoned in Mobile because I 
would not take up arms against the government. 

By Mr. Churchill : 

Q. Imprisoned by the confederate authorities.—A. By some combination there, I was 
imprisoned two days in the provost marshal’s office. 

By Mr. Smith : 

Q. State what has been your line of political action since, in reference to reconstruction.— 
A. When the reconstruction acts were first adopted, I advised all my friends to accept them, 
and I have uniformly urged them to acquiesce in the result of the war. 

Q. Have you acted with the democratic or with the republican party. 

(Question objected to by the committee and waived ) 

Q. What office did you hold before and at the time you were indicted.—A. The office of 
mayor of Mobile. 

Q. How did you hold that office.—A. By appointment from General Pope. 

Q. Is it true, or false, that you ever discriminated in your office as mayor, or otherwise, 
against any man on account of race or color.—A. It is absolutely false. 

Q. Were you under any odium in the community on account of your action and opinions 
in that respect. 

(Question objected to by Judge Busteed, and modified as follows :) 

Q. What was the feeling of the community there in respect to yourself, from your position 
as a Union man, during the war, and as a supporter of the measures of the government 
since.—A. r lhe community were all against me; myself and family have been completely 
ostracized on account of my opinions in that respect. 

Q. Will you please state who this man Archie Johnson is, what he was doing, and what 
you did.—A. Archie Johnson came to Mobile after the war. He represented at one time 
that he had lost his leg in the confederate army, and at another time in the federal army. 
He is a man who. when in liquor, is very turbulent. He had been brought up several times 
before me. I had fined him lightly as I could until the time of the arrest, when I ordered 
him to be sent out of the city as being a dangerous man to the public peace. 

Q. Did you, as mayor, hold a police court in the city.—A. Yes; I held mayor’s court 
every day. 

Q. In whose employment was Archie Johnson.—A. He was employed mainly in circu¬ 
lating a paper called the Tribune, of Mobile. 

Q. State what appearance he made on the street.—A. On the street he was very noisy; a 
man of a powerful voice. 

Q. Was he dressed in any particular costume; and if so, what appearance did he make on 


263 


tlie street. A. His appearance used to excite a great deal of attention in the community, 
and was calculated to throw odium upon men who were republicans. Those who employed 
him posted labels upon the back ot his coat and on his hat abusing and ridiculing Union 
men. Then he would go about calling their names in a way to call attention to them. 

Q. What label did he Avear on his hat.—A. He was out several times with the label 
“Bromberg’s hat.” 

Q. What was the significance of “ Bromberg’s hat.” 

(Judge Busteed objected to the question. Objection overruled.) 

A. Bromberg senior said he lost his hat at the time of the Kelly riot, and his name was 
constantly used in the papers by the way of reproach, and this Johnson was employed by the 
Tribune tor the purpose of going through the community and calling attention to it; sub 
jecting^ Bromberg and his family to ridicule and contempt. 

Q. State whether this paper was teeming with that matter in abuse of Bromberg and 
his family. 

(Question objected to and waived.) 

Q. What was the character of the Tribune.—A. It was violently abusive of every Union 
man. 

Q. Did it make ridicule of Bromberg on account of his Union proclivities.—Yes, sir. 

Q. In the meeting that was disturbed by the Kelly riot, as it is called, state what part 
Bromberg was acting.—A. He was there merely as a listener ; he sat on the stand with me ; 
I presided at the meeting. 

By Mr. Churchill : 

Q. How many times had this man been before you previous to your sending him out of 
the city.—A. At least twice, perhaps three times. 

Q. On whose complaint did he come before you.—A. He was taken up by the chief of 
police for disturbing the peace. 

Q. Did his conduct or attire have any effect to disturb the peace of the city; and if so, 
describe particularly the effect which it had.—A. Bromberg had three sons who were very 
respectable men, and the danger in Johnson’s going about dressed up so as to throw ridicule 
upon the family was, that there would be a collision and an attack made upon very respect¬ 
able men. 

Q. Was your authority civil or military.—A. My authority was civil, but I had special 
instructions from General Pope to keep the peace of the city at all hazards. 

Q. So far as you acted as presiding justice of the police court, were you governed by the 
laws pertaining to that court, or did you exercise an authority outside of the laws.—A. I 
tried to keep the exercise of my authority within the law as far as I could. That was my* 
instructions from General Pope. 

Q. Had you any written instructions from General Pope.—A. Yes, from General Pope, 
through General Swayne. 

Q. Have you them here.—A. I have not. 

Q. Do the laws applicable to that court give you, as mayor, any right to send a person 
out of the city.—A. Yes: both the charter and an ordinance of the city give that right. 

Q. State their language as nearly as you can.—A. The charter, in ordinary cases where 
persons are arrested, allows them to give bail; but in special cases, where there is danger of the 
peace, the mayor has discretionary authority to send them out of the city—with'or -without 
their consent. 

Q. That is a provision of the charter.—A. Yes ; and sanctioned by the legislature. 

Q. How long has that been the practice of the court; do you know. 

(Question objected to and waived.) 

Q. State what has been the precedent and practice in your police court; and also, whether 
you yourself have sent white men out of the city.—A. I have sent seven or eight white men 
out of the city before this case, and in doing that I followed the practice of all my predecessors. 

By Mr. Eldridge : 

Q. Has that been done by a regular judgment of the court; or is it a cessation of proceed¬ 
ings against the party provided they will leave.—A. They are sent out to get rid of them as 
being dangerous characters in the city. 

Q. Did you send them out of the city to get rid of them, or by judgment of the court 
directed to an officer to take the persons and carry them off.—A. Both courses have been 
pursued; that is, they have been allowed to leave, and they have often been sent out. 

Q. What was the case of the seven white men—were they allowed to leave the city as 
an alternative to their being sentenced and punished, or were they sent out.—A. They were 
ordered out. 

Q. How was the order enforced.—A. The chief of police was requested to see that they 
left. 

Q. In these cases that you refer to, did you enter an order or judgment that they be taken 
away.—A. The order is that they leave the city. 

Q. Did you give them the option to leave the city or go to jail, of is the mandate that 
they must leave; and if they do not, do you send an officer to take them out.—A. The order 
is that they leave the city ; and if they do not, the chief of police is to see that they go. 


264 


Q. To drive them off.—A. Yes. 

Q. What is the point of the indictment against you. 

(Question objected to by Judge Busteed. Question admitted, and modified as follows:) 

Q. State whether you offered and were permitted to introduce any evidence tending to 
show that your action relating to Archie Johnson had no reference to his race or color. 

(Judge Busteed objected, and the question was again modified as follows :) 

Q. What offer, if any, of evidence was made by your counsel in the case to show that 
you had not discriminated against Johnson on account of his color, and which was refused 
by the judge.—A. The offer was to prove that I had sent white men out of the city, and in 
so doing I merely followed the practice of my predecessors. My counsel offered to prove 
that General Withers himself had sent over a hundred men out of the city within 15 mouths, 
and that more than one-half of these were white men. 

Q. Your counsel offered to prove that and the judge refused to hear it.—A. He did. 

Q. What was the matter that transpired in reference to the alteration of the police docket; 
explain how that was and what course was taken with you relative to it. 

(Judge Busteed objected, and the question was not allowed.) 

Q. State any matter that may have previously occurred before that trial, tending to show 
that Judge Busteed entertained, when you were tried, malice towards you.—A. In the month 
of May, previous to this trial, John Hardy, formerly United States marshal of the district, 
commenced the publication of a paper in Montgomery, called the Daily Sentinel. He sent 
me a copy : not wishing to take the paper, I returned it, and with it a brief note in which I 
expressed the opinion that Judge Busteed had lost the confidence of the republican party in 
Mobile. That note was not intended for publication. . 

Q. What Avas that paper advocating relative to Judge Busteed which caused a reference 
to Judge Busteed in your note.—A. That paper had at the head of its columns the names 
of General Grant for President and Judge Busteed, of Alabama, for Vice-President. In my 
note declining to take the paper 1 stated that I thought the editor had made a mistake in 
putting up his name; for Judge Busteed had lost the confidence of the republican party of 
Mobile. Some weeks after that the note was published in the Sentinel, and a public demand 
was made upon me in the Sentinel for au explanation or retraction of that note. I took no 
notice of it, and the demand was reiterated several times. I did not know at the time, and 
I do not noAv know, except by understanding from others, what the relations were between 
Judge Busteed and Hardy. 

Q. Was there ever anything said by you to Judge Busteed, or by Judge Busteed to you, 
upon the subject.—A. No, sir. 

Q. Had you written this letter before you were indicted by the grand jury in Judge 
Busteed’s court.—A. Yes, some time before. 

Q. Have you ever altered any docket whatever. 

(Question objected to and waived.) 

Q. Did you offer any testimony in respect to the alteration of that docket. 

(Objected to by Judge Busteed, and modified, viz :) 

Q. Was any offer made by the counsel of Horton, of evidence with regard to this docket.— 
A. There was no argument of the counsel upon the docket. 

Q. Was there any offer of evidence made to the court to explain an alteration which 
appeared to have been made upon the docket, or with reference to the docket.—A. There was 
no argument or explanation; I can only make the committee understand by stating the 
facts of the case. 

(Objection was made to the statement.) 

Q. What did appear before the court in regard to this book.—A. It is one kept in the 
guard-house, a daily journal where the names of the criminals are entered as they are brought 
in ; I had nothing to do with that; I never examined the book. 

By Mr. C HUitCHILL : 

Q. What appeared upon that book as it was produced in court.—A. Judge Busteed had 
the book upon his own desk. He looked over that book. Neither my counsel nor the coun¬ 
sel for the prosecution got a look at the book. 

Q. Did they ask to look at it.—A. They didn’t appear to take much interest in it. It was 
right on the judge’s desk, and Mr. Wade, the sentinel, stood beside him. 

Q. Did you look o\'er the book.—A. I never saAv the book—that is, at that time; I saw 
it afterwards, when this charge was made against me. 

Q. Who produced the book to the court—A. I presume Major St. Paul, that made the 
oath to get me indicted. 

Q. Do you knoAV who produced the book there in court.— A. I do not know who produced 
the book, only Avlien Mr. Wade summoned the witness the book was there, and it was put on 
the judge’s desk where the Avitness stood. 

By Mr. Eldkidge: 

Q. Was it offered in .evidence ; Avas anything read from the book to the court or juiy.—A. 
The book Avas on the judge’s desk, and Judge Busteed himself interrogated the Avitness in 
regard to the Avritiug. 


265 


Q. Where did Judge Busteed get the book.—A. I do not know ; it was there on his desk. 

Q. Was there any evidence to show that you ever had anything to do with the book, 
except as he made it so.—A. When the examination was going on I did not dream what use 
was to be made of it. 

Q. Was there any evidence by any witnesses that you had anything to do with the book.— 
A. No, sir ; there was no witness to prove it. But Judge Busteed put questions about the 
entry on a certain day where the charge was drunk, disorderly, and resisting the officer in 
the discharge of his duty. The word “drunk” was interlined or written over. 

Q. Was it in your handwriting.—A. No, sir: Judge Busteed interrogated this witness 
particularly in regard to that, as to who did it. Mr. Wade didn’t know. My attention was 
not attracted to this matter particularly until the judge made use of it in this charge, when 
I could hardly keep my seat. 

Q. What use did he make of it then.—A. Intimating that it was a book under my con¬ 
trol, and consequently, who did it but the prisoner at the bar. That is my impression. 

By Mr. Churchill : 

Q. This book that was produced was one that was kept at the guard-house.—A. Yes, sir. 

Q. Was the guard-house a distinct place from the one where you held your police court.— 
A. The police court is in the mayor’s office. In the guard-house they have a daily journal 
where, w hen criminals are brought in, their names are entered. The keeper of the day-book 
there does not always know precisely what will be the evidence until the witnesses come in. 
For instance, people are brought in there, locked up, and as the witnesses come in to give 
the facts they are entered, and from this book a docket is made up for the mayor, and the 
regular docket for the chief of police. 

Q. Whose duty was it to keep that day-book.—A. Mr. Wade was the day sentinel. 

Q. Was the book at all under your charge.—A. No, sir. 

Q. Was it the duty of these parties to submit it to you from time to time.—A. I never saw 
this book until this charge against my integrity was made ; but after the sentence was pro¬ 
nounced I went under charge of an officer around to the guard-house and saw that book. It 
is all in the same handwriting. 

By Mr. Eld ridge : 

Q. Did the district attorney present that book as evidence in the court.—A. It was brought 
in by the prosecution. 

Q. Was it offered or read to the jury.—A. The jury never saw it; the book just remained 
on Judge Busteed’s.desk. The jury didn’t use it, nor the counsel during the trial, and all 
the questions in regard to it were put by Judge Busteed. 

Q. Wade, w r ho had charge of that book particularly, was sworn as a witness.—A. Yes, sir. 

Q. And he was interrogated by the judge in reference to this book.—A. Yes, sir; it he 
knew who made that entry. 

Q. Did Wade swear that you did it.—A. No, sir. 

Q. Did he swear that you had control of the book.—A. Nothing of that kind. Judge 
Busteed asked him the question if he knew who made that word “drunk” that was written 
there. Wade did not recollect. The police, when they bring in men, frequently enter their 
names, and then the charge is made specific as the facts come in in regard to the case. From 
this daily journal the docket is made up, one for the mayor and one for the chief of police; 
but these dockets were never in court. 

Q. When the judge was commenting to the jury upon that journal did you remonstrate.— 
A. I was there when he put those questions, but I did not know at the time what object he 
had until he gave the charge. 

Q. When he gave the charge to the jury and spoke of this book, and used it in the man¬ 
ner he did, did you make any objection, or did your counsel, to his using it in that way.— 
A. No, sir. 

Q. Neither one of you.—A. No, sir. 

Q. When he came to make his charge you knew what use he was making of it.—A. Yes, sir. 

Q. Well, then, did you get up and remonstrate, and do or say anything.—A. I did, when 
he gave me permission, before he pronounced the sentence. 

Q. Then you referred to that subject.—A. Yes, sir. 

Q Then did the judge take back what he had said, or what did he reply to you.—A. He 
didn’t make any reply to it at all. The court was pretty full; there was a great crowd of 
people there. I then made an appeal to the jury and wished them to go to the guard-house 
and look at that book. I told them I had lived there over 30 years, and never before had my 
integrity questioned. 

Q. Did your counsel argue your case at all.—A. No, sir. 

Q. Was he permitted to argue the case.—A. His expression to me was that the evidence 
being ruled out it w r as of no use ; that was the feeling he had— crushed by the treatment he 
had received. 

Q. Are you a lawyer.—A. No, sir. 

Mr. Smith here offered in evidence the printed report of Judge Busteed’s charge to the 
grand jury, from the Mobile Daily Tribune of December 11, 1807, as follows *. 


“ UNITED STATES DISTRICT COURT—JUDGE BUSTEED’S CHARGE TO THE GRAND JURY. 

“ Gentlemen of tiie Grand Inquest : The regular appearance of jurors in the national 
courts held in States formerly in insurrection, is a subject for thoughtful congratulation. It 
is especially so at this juncture in public affairs. That the general government did not mean 
to leave any part of the people without redress at law, while the political reconstruction of 
the States was in progress under a military supervision, is evidenced by the fact that the 
courts of the nation are in the unrestricted exercise of all their functions. It is also matter 
for profoundly grateful reflection that throughout this State there is no hostility manifested 
towards the legal tribunals of the United States. The exceptions to this rule are so local, 
individual, and insignificant as not to impeach the general proposition. I indulge the belief, 
founded upon past experiences, that this order of things will be increased and strengthened 
by the manner in which you shall meet the responsibilities of your office. Let this be your 
ambition and your care. 

“The jurisdiction of a-grand jury has been tersely stated in these words : ‘ It is co-exten- 
sive with that of the court for which they inquire, both as to the offences triable there, and the 
territory over which such court has jurisdiction;’ and the oath of a grand juror embraces not 
only the duty of investigating such matters as are expressly given to their charge, but it 
creates a duty to inquire and examine into all complaints touching their service, by whom¬ 
soever made, or by whatever means the knowledge of those matters may be gained. Your 
proceedings are secret because of the facilities thus afforded to arrive at the truth, and because 
the publication of your doings would enable criminals to escape from the jurisdiction of the 
court, and so avoid arrest or imprisonment. You are not obliged to keep a record of your 
proceedings except for your own use, and this I strongly recommend you to do. In cases 
submitted to you by the district attorney on behalf of the government, it is his duty to fur¬ 
nish you in writing the names of the witnesses by whose testimony it is expected proof will 
be made. In cases that come to your knowledge otherwise than from information of the 
district attorney, you must rely for witnesses upon the sources from which you derive that 
knowledge. In all cases it is the duty of the district attorney, on your request, to have wit¬ 
nesses subpoenaed and brought before you; and it is his duty, as it is the duty of the court, 
continually to aid you in the prosecution of your business. In matters of law upon which 
you are in doubt, you are entitled to have his advice, but you determine questions of fact 
for yourselves, without reference to any judgment save your own. 

“Twelve of you must concur in finding an indictment, and unless this number agree the 
bill must be ignored. Your foreman is authorized to administer oaths to witnesses, and per¬ 
jury may be assigned for falsely swearing before you. You can conduct the examination of 
witnesses yourselves, or require the district attorney to do so for you; but during your delib¬ 
erations, or when you vote, he has no right to be present. The true scope of your investi¬ 
gations is to ascertain whether upon a fair and rigid interpretation and estimate of the 
evidence submitted to you, the party accused should be put upon trial for the alleged offence. 
In making up a conclusion you should bear in mind that the accused has had no opportunity 
of explaining circumstances tending to establish the commission of crime, and that incorpo¬ 
rated with all human testimony there is bias of some degree and kind, although its existence 
is even unknown to the witness, and although it is not the result of prejudice or falsehood 
in him. The best you can do is to observe the spirit and tenor of your oath, and meet the 
requirements of truth in every instance. If, notwithstanding the observance of this rule, an 
innocent man is accused by you, a petit jury, in the light of better evidence, will not fail to 
save him from untoward consequences. 

“I have not received any information from the district attorney on the subject, but from 
what I can learn in other quarters I am led to believe that, except cases arising under the 
civil rights bill, and touching the revenue laws, no complaints will be submitted for your 
action. 

“The sanctity of the mails has not been invaded, and no case of offence, so far as is known, 
against the Post Office Department, has occurred since the trial and conviction of an offender 
in this district nearly a year since. This very important branch of the public service in this 
State is conducted in a manner that entitles it to notice and commendation. 

“It is a matter of regret that, notwithstanding the vigilance of the officials charged with 
the assessment and collection of the revenue, there appears to be no diminution in the viola¬ 
tions of laws which provide for the imposition of taxes. 

“ A few days since, while in the northern district of this State, I had occasion to charge a 
grand jury on this subject, and what I then said is apt and fitting to be now repeated. 1 am 
apprehensive that a lax morality prevails upon the subject of the public revenue. Persons 
who would shrink from an out-and-out theft, participate without compunction in schemes to 
defraud the government of wliat is ueeessary to sustain its credit at home and abroad. Such 
a distinction in favor of crime, however creditable to a wicked ingenuity, is not entitled to 
consideration at the hands of justice. The man who wilfully violates any law of the land 
takes the initiative towards breaking every statute that is obnoxious to him. In respect 
to its credit, government is like an individual. Its vigor and prosperity depend in a good 
degree upon its punctuality in meeting its monetary obligations, and repudiation of an hon¬ 
est claim is the resort of gamesters and rogues. No nation can afford to follow the example 


267 


of these. A veiy larp^e public debt burdens the treasury, and the people, by representatives 
c losen ti om themselves, ha\e enacted laws intended to provide ways tor the government to 
meet the constantly recurring demands of its creditors. It should be understood that he 
who wilfully evades these laws is an enemy of the country, and as verily guilty of encom¬ 
passing its destruction as he who makes open war upon it. The poet ‘for all time’ declares, 
‘ he steals my life who steals the means whereby I live.’ I ask your especial attention to 
this class of cases. 

“For some time after the reopening of the national courts in Alabama, there appeared to be 
an extended and systematic series of attacks upon the coin and fractional currency of the 
country. Several convictions were secured, and one old offender is serving out his term of 
imprisonment. Those convictions have had a most salutary effect, and, I think, have 
relieved this State from the operations of a band of busy and experienced counterfeiters. 

“On the 9th day of April, 1866, Congress passed an act entitled ‘An act to protect all 
persons in the United States in their civil rights, and furnish the means of their vindication.’ 
The first se.ction of this act confers American citizenship upon that portion of the popula¬ 
tion of African descent that, before the passage of the law, were held in life-servitude, and 
declares them entitled to the full and equal benefit of all laws and proceedings for the security 
ot person and property as is enjoyed by white citizens, and makes them subject to like 
pains, penalties, and punishment to which white citizens are subject, and to none other. 
The wisdom and propriety of a law are to be presumed from the mere fact of its enactment, 
and the existence of a statute is prima facie evidence that there was a necessity for the legis¬ 
lation. While it remains upon the national or State code, and is not judicially declared un¬ 
constitutional, the law must be obeyed. Those who think it wise and those who regard it 
differently; those in authority and those who are subject to authority; those who are affected 
favorably by it and those who deem themselves prejudiced by it—it matters not, the tribute 
of obedience must be paid. The design of this civil rights statute is apparent on its face. 
It was to be a shield and buckler, an armor of mail, to the poor, ignorant, half-savage 
creature who in a trice was lifted out of the condition of chattel existence into the condition 
ot moral and legal responsibility. It was not to be expected that the freedmeu could, for 
some time to come, understand this change in their status, or its value ; and it was to pre¬ 
vent the white men from imposing on the credulity and ignorance of the former slave that 
Congress passed the act. It was eminently proper to pass it; and the American people 
would have been the scorn of Christendom if they had failed by appropriate legislation to 
secure and protect the blacks in the new condition thrust upon them without their consent 
being asked or their wishes ascertained. 

“ It was the intention of Congress that this civil rights bill should act in tcrrorem over a 
particular class in favor of a particular class ; and as the flaming sword which turned every 
way to keep the way of the tree of life was placed at the east of the garden of Eden eheru- 
bims, so this law was enacted and promulgated to keep the way of the tree of human liberty 
unobstructed iu our own land, and to inspire other lands by our example, until all nations 
and peoples and kindred and tongues hold jubilee beneath its protecting shade. Besides 
this, the poor of the nation are the wards of the nation, and the weak in understanding the 
objects of its special and unceasing solicitude. 

“ I am advised that several alleged violations of this statute are to be brought to your 
notice, and I bespeak for them all a patient, faithful, and fearless investigation. Probe each 
case to the quick, and if any one appears to be guilty let him be indicted and put upon his 
defence. 

“The civil rights which the statute secures to black men are enumerated in it. The 
rights to make and enforce contracts, to sue, be parties to suits, give evidence as witnesses 
to inherit, purchase, sell, hold, and convey real and personal property are clearly stated ; 
and if the freedman is denied or hindered in any of these, the person who denies or hinders 
him is guilty of a violation of the provisions of the law. But, in addition to these, he is 
declared to be entitled to the ‘ full and equal benefit of all laws and proceedings for the 
security of his person and property as is enjoyed by white men,’ and to be subject only to 
the same punishment for crimes that the law affixes to the perpetration of like offences by 
white men. Now, whatever question may arise as to the true meaning and intent of the 
words ‘ full and equal benefit of all laws and proceedings for the security of his person and 
property as is enjoyed by white men,’ there is no room for doubt that Congress intended to 
make it a crime, and that the civil rights bill does make it a crime, to punish a freedman for 
an offence in any different degree or manner than as the laws declare a white man shall be 
punished for the same offence. If, for example, a judge or a magistrate having jurisdiction 
to hear and determine criminal complaint should inflict any different or other or greater pun¬ 
ishment upon a black man convicted by or before him than the laws affix to the same offence 
when committed by a white man, the judge or magistrate would be palpably guilty ot a 
violation of this statute, and deserves to bear, and should receive, its extreinest penalty. I 
cannot imagine any greater wickedness than this. 

“I am informed that some of the alleged violations of the provisions of the civil rights 
bill consist in a refusal of certain incorporated railroad companies to carry black men in the 
same conveyances provided for white men ; or it may be the refusal goes to the length of 
denying them any transportation in public vehicles under the management and control of 


268 


the incorporators ; and the question is, whether the refusal of a common carrier, for hire, to 
allow a black man, because lie is black, to ride in a public vehicle, is such a denial to him 
of the ‘ full and equal benefit of all laws and proceedings for the security of person and 
property’ as makes the carrier an offender against the law under consideration. Is the 
security of a black man’s person endangered by the refusal of a common carrier to receive 
him as a passenger ? Is the security of his property hazarded by a like refusal ? And if 
either his person or his property is rendered insecure by the refusal, does the civil rights bill, 
ex vi termini , create or assert a remedy for this injury ; or is the black man in such case 
remitted to the same remedies which are provided for a white man in the same case ? What 
shall a white man do if a common carrier unjustifiably exclude him from a public vehicle ? 
and shall a black man be allowed to do more or differently for his extrusion ? Shall there 
be one rule of law governing the case of the expulsion of a black man, and a different rule 
to govern the case of the expulsion of a white man? I ask these questions, but I design¬ 
edly refrain from answering them. I put them by way of suggestion rather than by way 
of interrogation, as a gauge, rather than as a rule, for your thoughts. It is our duty to give 
to the statute the widest field of operation and the largest circle of jurisdiction it may lawfully 
take, and if an indictment is found embracing the question, we have the satisfaction of 
knowing that the whole subject will undergo legal review and be definitely settled according 
to established and universally recognized principles. 

“ In the present depressed state of private affairs and the straitened circumstances of a 
whole people it is of the first consequence that officials whose compensation does not depend 
upon a fixed salary, but upon fees, should keep within the limits prescribed by the acts of 
Congress. As things stand to-day in Alabama, the question whether an official shall have 
what the law allows him for a certain service, or what he improperly demands, is a question 
whether his victim shall starve or eat. Extortionate charges by persons in public office, 
made under color of authority, and wrung either from fear or transgression, is a crime of 
more than ordinary wickedness. Justice must leap to overtake the man who would thus 
prostitute his office. 

“You have the right, gentlemen of the jury, to make presentments as well as to find in¬ 
dictments. A presentment is the notice taken by you of any matter coming directly under 
your own cognizance relating to your present service. I have stated that your jurisdiction 
is coequal with that of the court, both as to offences triable before it and the territory over 
which it has jurisdiction. For example, this building and the grounds attached to it are 
within the territorial jurisdiction of the court. You may examine them or any part of them 
to ascertain their condition, aud make such presentment in respect to them as you may deem 
necessary and proper. You may also inquire and ascertain how custodians of the public 
property conduct themselves upon this behalf, and if you find criminal neglect or misuse of 
any of it, you should present the fact, with the name of the wrong-doer, so that he may be 
indicted. 

“I believe, gentlemen, I have now gone through the various matters to which it is im¬ 
portant I should direct your attention, and I shall close this address by repeating to you the 
oath you have just taken, and which, well kept, will prove a panoply of protection to the 
good, and a double-edged sword to the bad. It is in these memorable and impressive sen¬ 
tences: ‘You do solemnly swear that you will diligently inquire, and true presentment 
make, of all such articles, matters, and things as shall be given you in charge, or otherwise 
come to your knowledge touching the present service; the United States’ counsel, your fel¬ 
lows’, and your own, you shall keep secret; you shall present no one for envy, hatred, or 
malice; nor shall you leave any one unpresented for fear, favor, affection, hope of reward, 
or gain; but shall present all things truly, as they come to your knowledge, according to 
the best of your understanding, so help you God.’ ” 

By Mr. Churchill: 

Q. In answer to the question of Mr. Smith, as to what motive the judge had of malice 
against you, you answered by referring to this paper. Is that the full answer you have to 
make to that question—all that you have to say about it.—A. I may state that later in the 
summer, in June or July, there was a republican convention held at Montgomery, to which 
Judge Busteed tried to get admission. 

Q. Before or after the trial.—A. Before the trial. 

By Mr. Eldridge : 

Q. Did you act against Judge Busteed there.—A. I was not in the convention. 

Q We are asking whether you know of any other occasion of ill-will or malice against 
you aside from that which you have already stated.—A. No, sir, none at all. 

Q. Do you know of any cause of malice by Judge Busteed towards you excepting what 
was exhibited in that trial.—A. I cannot say that I do. 

By Mr. Churchill : 

Q. Were you aware of any feeling of hostility on his part towards you before the prose¬ 
cution against you in this case.—A. Well, intimations frequently came to me, but in a form 
that I could not present them, because I never supposed that things would reach the crisis 
they did. I had my duties to perform—the fact is I was the subject of constant abuse in 


269 

the papers every day ; and when the charge to the grand jury was made, there was special 
reference made to me. 

Q. Is your name mentioned in the charge to the grand jury.—A. No, sir, not my name ; 
but parties about the court kept giving me information that it was designed for my benefit. 

By Judge Busteed : 

Q. What is your avocation in life.—A. I have been a commission merchant and cotton 
broker for 30 years in Mobile. 

Q. You never studied law or practiced it, did you.—A. No, sir. 

Q. Did you ever read Kent’s Commentaries, or any volume of them.—A. Not as a whole; 

I have read parts of them. 

Q. Did you ever read any law-book upon any legal topic; and if so, what book.—A. I 
never made the law a study. 

Q. You are now judge of probate for the city of Mobile, are you.—A. Yes, sir; for the 
county of Mobile. 

Q. That includes the city.—A. Yes, sir. 

Q. How did you get that office.—A. I was elected to it in February, 1867, by the people 
of the county. 

Q. Did your election come through the antecedent process of a nominating convention.— 
A. Yes, sir. 

Q. Were you a member of the convention by which you were nominated.—A. I was a 
member of the convention that adopted the constitution. 

Q. Can you answer me whether you were a member of the convention by which you were 
nominated.—A. Yes, sir, I was a member of the convention. 

Q. Did you take any means to secure your nomination as probate judge of the city and 
county of Mobile.—A. None at all; I never sought office in my life. 

Q. When it was tendered you did you refuse it.—A. I accepted the nomination with re¬ 
luctance. 

Q. Did you state to the persons who tendered you the nomination that you were not a 
lawyer, and had never read a law book.—A. They all knew that. 

Q. When you speak of having always recommended to your friends the adoption of the 
constitutional amendment, do you mean by that the amendment to the Constitution of the 
United States.—A. I mean what is called the 14th amendment, and all the reconstruction 
measures of Congress. 

Q. Can you answer me whether you mean by that any proposed amendments to the Con¬ 
stitution of the United States.—A. What I mean by it is, all that comes under the head of 
the reconstruction measures of Congress. 

Q. Were you arrested preliminary to the indictment on this charge.—A. I was brought 
before the United States commissioner; yes, sir. 

Q. What was the commissioner’s name.—A. W. W. D. Turner. 

Q. Was he a member of the republican party.—A. He professed to be so, and then went 
on the other side. 

Q. At that time was he.—A. He professed to act with that party. 

Q. Wasn’t he a member of the Loyal League in Mobile.—A. Not to my knowledge. 

Q. What did he do officially in respect of the complaint against you.—A. He bound me 
over to court to meet the subsequent call. 

Q. Was this in Mobile.—A. Yes, sir. 

Q. Was Judge Busteed there then.—A. Judge Busteed was not there then. 

Q. Don’t you know that Judge Busteed was not in the State then.—A. I know that he 
w T as not in Mobile. 

Q. Was not your information that he was not in the State.—A. I don’t know about that. 

Q. How long after your being held to bail by the commissioner was it that you saw Judge 
Busteed in the State.—A. I saw Judge Busteed when the court opened in December. 

Q. And when were you arrested and brought before Mr. Turner.—A. Some time in the 
summer previous. 

Q. You had never called on Judge Busteed, had you.—A. No, sir. 

Q. From the time of his arrival in Mobile until to-day.—A. I stated I had not been intro¬ 
duced to you ; I never called on you. 

Q. When Judge Busteed first came there, did you doubt the genuineness of his republi¬ 
canism.—A. I did not at that time. 

Q. On the trial before Judge Busteed, upon this indictment, did your counsel challenge 
any jurors.—A. Yes, some of them ; I forget how many. 

Q. Do you know whether he did not challenge eight persons peremptorily.—A. I do not 
recollect the number; he challenged quite a number. 

Q. Who appeared with the district attorney, if any person, to prosecute that indictment; 
wasn't it George N. Stewart.—A. George N. Stewart consented to alter several had lefused. 

Q. Who was district attorney then.—A. Mr. Martin was the district attorney, but Major 
St. Paul appeared to be acting ; Martin was the district attorney, as I understood. 

Q. Is Mr. George N. Stewart an old resident of Mobile.—A. Yes, sir. 

Q. What is his character as a man and citizen, and as a lawyer, so far as you know in 
that capacity.—A. He is a very able lawyer, and a very respectable man. 


270 


Q. Did Mr. Moulton ask for the evidence of the cause before a jury was empanelled.—A. 
He tried to get the case continued. 

Q. Until what time.—A. He wanted until the next court, I think. 

Q. That was refused, wasn’t it.—A. Yes, sir. 

Q. Didn’t he then ask for a continuance of 20 days.—A. He subsequently asked a con 
tinuance to get the evidence of the chief of police, Colonel Dimond, who was away. 

Q. Upon that last application didn’t the district attorney say that he would admit that if 
Dimond were here he would swear to all that the affidavit says he would, subject to all legal 
exception as to admissibility.—A. I do not remember positively about that. 

Q And didn’t Mr. Moulton say in answer that he asked nothing more.—A. I do not 
recollect of his saying that. 

Q. You say that some of your friends told you that the charge of the judge to the grand 
jury that subsequently indicted you was aimed at you.—A, Yes, sir. 

Q. Who told you so; name them if you please. —A. I do not recollect the names, but my 
impression is that Captain A. M. Granger was one. I am not certain, and would not say 
positively; but knowing his intimate relations with the marshal, it would not come to me 
except through him. 

Q. Name any one you are able to.—A. I did not pay much attention to these reports. 

Q. Can you name a single person who told you so.—A. I am pretty well satisfied that 
Captain Granger spoke to me about it, and there were others. 

Q. Can you name any of the others.—A. I cannot at this moment. 

Q. Did Robert H. Smith tell you so.—A. No, sir. 

Q. Did you have any conversation with Robert H. Smith upon the subject of your trial, 
before the trial took place.—A. None at all. 

Q. Or any communication in writing.—A. No, sir. 

Q. Or with J. Little Smith, his brother.—A. No, sir. 

Q. Or Richard N. Smith, his son.—A. I had no conversation with either of them. 

Q. Or with Herndon, his brother-in-law.—A. No, sir. 

Q,. And they are not among the persons who told you.—A. No, sir. 

Q. You had been on the grand jury, or a grand jury in Judge Busteed’s court, yourself.— 
A. Yes, sir. 

Q. The' charge he delivered to the grand jury before your indictment by that grand jury— 
in what does it differ in essential particulars from any of his previous charges.—A. Well, 
the difference according to my recollection is, that it makes special allusion to civil-rights 
cases ; I am not certain. 

Q. In the charge which he delivered to the grand jury on which you sat, didn’t he. make 
special reference to the civil-rights bill and call the attention of the grand jury to it, and to 
any violations of it that might be brought before them.—A. I do not recollect at this 
moment. 

Q. Is it true as a matter of fact that you sent Archie Johnson out of the State of Ala¬ 
bama.—A. I ordered him out of the city. 

Q. Out of the State.—A. Out of the city; my order was for him to leave the city. 

Q. Did you give any direction as to sending him to New Orleans.—A. I gave no special 
directions to that effect. 

Q. Did you not know that he was to be taken to New Orleans.—A. I didn’t know until 
after he had gone, where he was gone to. 

Q. Did you know anything of his pecuniary circumstances when you ordered him ban¬ 
ished.—A. I knew nothing specially as to his pecuniary condition. 

Q. Did you know whether he had a dollar in the world or not.—A. I supposed he had a 
good many. 

Q. Did you know.—A. Not of my own knowledge. 

Q. Was he crippled at this time, with one leg.—A. He had but one leg. 

Q. Did the officer who put him on board the boat to go to New Orleans report to you, 
immediately after, the fact.—A. I did not know that he had gone there until I heard of his 
return, I think, the next day or the day after. 

Q. Who told you of it; one of your officers.—A. The first I knew of it was, my son saw 
him on the street. He came back, I think, on Sunday morning, and he was calling my name 
on the street. 

Q. Did any of your officers ever tell you that he was sent to New Orleans under your order 
that he should leave the city, by virtue of your order to have him removed from the city.— 
A. I do not recollect specifically ; I do not think they did. 

Q. What was the tare between Mobile and New Orleans on the steamboats.—A. I believe 
that they charged at that time ten dollars for cabin passengers. 

Q. When you directed your officer to remove Archie Johnson from the city, did you direct 
him to ascertain whether Johnson had any money.—A. No, sir; I did not. 

Q. When your son informed you that Archie Johnson was in the city of Mobile, after his 
expulsion to New Orleans, did you give an officer any directions as to his removal then.—A. 
I left my residence and went into Dauphine street, and there saw a crowd of boys and full- 
grown men, and as I passed down the street I saw some one dodge into an eating saloon or 
bar-room. I passed on, going to the guard-house, as was my custom every Sunday morn- 


271 


ing, to see what occurred Saturday night, and on my way there saw this crowd. I did not 
pay much attention, but when I had passed by about a square and a half my attention was 
arrested by hearing Johnson’s voice saying, “Here’s all about Archie Johnson and Mayor 
Horton.” He was right in the middle of the street. I then went down to the guard-house 
and saw the chief of police, and told him what Johnson had done, and ordered him then sent 
up to Montgomery. 

Q. To jail.—A. No, sir ; sent up there. I gave them an order to send him there. 

Q. Was any complaint made before you as a magistrate upon which that order rested.— 
A. When I got down to the guard-house the police there told me about his being back and 
going through the streets, crying, “ Here’s the Tribune ; all about Archie Johnson and Mayor 
Horton !” I then directed the chief of police to send him off that day, as I considered his 
presence dangerous to the community. 

Q. Hadn’t you intended to send him off when you went there.—A. I intended to rid the 
city of what I considered a dangerous element at that time. I considered his coming back 
a continuation of the offence. 

Q. Was any formal complaint made by any person before you as a magistrate under oath, 
upon which your second order for the expulsion of Johnson rested.— A. No, sir ; and it was 
not necessary under the charter. 

Q. Do you not know that upon that last expulsion he was actually taken forcibly to Mont¬ 
gomery.—A. Yes, sir; he was taken there in charge of an officer. 

Q. Do you not know that he was put into the common jail at Montgomery, when the offi¬ 
cers got there.—A. Not of my own knowledge. 

Q. Did the officers so report to you.—A. Not that I recollect. 

Q. What was to be done with Johnson upon his expulsion from Mobile, and when they got 
to Montgomery; did you make airy order in relation to it, as to what was to be done with 
him when he was dropped in Montgomery.—A. I wrote at the time, I think, may be to 
General Swayne, that 1 had sent him out as being a dangerous man in the community. It 
was told me that Johnson really belonged in Georgia. 1 do not recollect at this moment giv¬ 
ing any special instructions. 

Q. Did you give any general instructions.—A. Except that I wrote to General Swayne, as 
my recollection is, and stated the facts. 

By Mr. Eldridge : 

Q. Didn’t you give to the policeman any directions as to what he should do, general or 
special, when he got him to Montgomery.—A. I do not recollect. I was trying to recall 
whether I did write a note to the chief of police there. 1 do not now recollect. 

By Judge Busteed : 

Q. What was the policeman’s name by whom you sent him from Mobile to Montgomery.— 
A. The chief of police directed that. I do not recollect. 

Q. Do you know whether the policeman paid Archie Johnson’s fare from Mobile to Mont¬ 
gomery.—A. I believe they did. 

Q. Do you know.—A. The chief of police has a contingent fund, and I presume they did ; 
my impression is that they did. 

Q. You say that when Archie Johnson was first brought before you, you fined him 
lightly.—A. Yes, sir. 

Q. The first two or three times.—A. Yes, sir. 

Q. Upon what complaints was Archie Johnson brought before you upon the occasions 
when, as you say, you fined him lightly.—A. I think they were for drunkenness and being 
a little disorderly, but I felt a sympathy for the man, being a cripple. 

Q. And upon what complaint was he brought before you when you expelled him from the 
State and city.—A. Upon the complaint of Colonel Dimond, the chief of police, that he was 
on the street, dressed up in a costume, and calling out the names of the Brombergs and 
others, and stating that if he remained in the city there would be trouble and a breach of the 
peace. 

By Mr. Eldridge : 

Q. Was he crazy.—A. I do not think he was; but when he was in liquor he was a dan¬ 
gerous man, would get into a fight, and could use his crutch with a great deal of violence. 

Q. Was he a full-blooded negro.—A. Well, yes ; I think he was. 

By Judge Busteed : 

Q. Was he a dangerous man when he was not drunk.—A. I should not think he was. 

Q. And you say now that the complaint upon which you fined him lightly was lor being 
drunk and disorderly, and the complaint upon which he was expelled was that Colonel 
Dimond told you he was wearing this fantastic garb and likely to create a breach of the 
p eaC e.—A. Colonel Dimond was chief of police, and could tell about that in his official 
capacity; it was a continuation ot his offence. 

Q. You have described Johnson as a man with a powerful voice. Wasn t that quality well 
calculated to enable him to get a living selling newspapers.—A. 1 do not think lie would 
have done much ; but he had been employed by the papers there to lidicule lo^al people. 
He was made a tool of by them. 


272 


Q. You stated that his (Johnson’s) appearance was such as to draw odium upon repub¬ 
lican Union men. Was that appearance calculated to draw odium upon any other republican 
Union men except the Brombergs and yourself; and if so, who.—A. I stated that when he 
went out on the street he frequently had a label on his hat, and they would pin things on the 
back of his coat, and everybody’s attention was drawn to it; and he was specially employed 
by the Tribune for that purpose. 

Q. Were any of Bromberg’s three sons crippled or in ill-health.—A. One of them was in 
delicate health, and had to leave the city on account of the abuse ot his family. He was a 
young man of a nervous temperament aud his position obliged him to leave—the abuse oi his 
family. 

By Mr. Eldridge : 

Q. By whom.—A. He could not stand the abuse thrown upon his family by the commu¬ 
nity, aud this man Johnson was used to bandy their names through the community. 

By Judge Busteed : 

Q. How about the other two—strong, healthy fellows.—A. They are healthy men ; yes, 
sir. 

By Mr. Eldrtdge : 

Q. Was this abuse merely repeating their Union proclivities, or was it personal.—A. It 
was personal; they were accused of almost every crime. 

Q. Anything more than that which would arise from their being connected with the Union 
side instead of the confederate side—A. Yes, sir ; a good deal. 

By Judge Busteed : 

Q. You say you wrote in the month of May previously to your trial to John Hardy, the 
editor of the Daily State Sentinel, that Judge Busteed had lost the confidence of the repub¬ 
lican party in Mobile.—A. Yes, sir; something to that effect. I haven’t a copy of my letter. 
I do not recollect now what it was. 

Q. What conduct of Judge Busteed did you intend to complain of as having lost him the 
confidence of the republican party in Mobile.—A. At the term of the court subsequent to the 
one in which I was on the grand jury, I was present in court at the time the grand jury 
were to be sworn in. The controversy then arose between Judge Busteed and Mr. Martin, 
the district attorney, who stated that the jury had been improperly empanelled, and there 
was quite a discussion between Martin and Judge Busteed, and it appeared to me at the little 
distance I satin the court that he (Martin) was cowed down, and finally he had to let the 
men be sworn in; and they were men whom I knew could not have taken the oath as grand 
jurors, because there were men on that grand jury who had been concerned in running the 
blockade all through the war. I could not sit on a grand jury if I had been a blockade- 
runner. This was the first thing that attracted my attention to Judge Busteed. 

Q. What other conduct, if any, of Judge Busteed, induced you to write to Mr. Hardy 
that he had lost the confidence of the republican party in Mobile.—A. I knew at that time 
that the judge’s affiliations appeared to be with what lie called the democrats ; the men who 
were not republicans. His affiliations were with men who had been opposing me and the 
whole of us all the time. 

Q. In that connection, what do you mean by his affiliations.—A. I often heard persons 
speak of having been with him at his room and enjoying the social glass ; being particularly 
intimate with him. 

Q. Do you mean that he dined with those gentlemen at their houses.—A. Not at their 
houses. 

Q. What persons did you know of his doing this wfith when you wrote this letter to 
Hardy.—A. I think that Major St. Paul was one. I have heard of his being with him, and 
Mr. Titcomb also. 

Q. Anybody else.—A. Well, I do not recollect names particularly. 

Q. In respect to the empanelling of the grand jury to which you have just referred, and 
the objections made by Martin, do you not know that the judge asked District Attorney 
Martin whether he would tender the oath to any of the grand jurors, and that Martin refused, 
saying he knew the gentlemen to be respectable, or words to that effect.—A. I believe I stated 
before that I was not near enough to hear the full conversation. I think that previous to 
their being sworn, after Martin had made many objections in regard to the jury being illegally 
empanelled, and then he put the question whether he insisted upon it in a peremptory' w r ay, 
and Martin seemed to be cowed down under the judge’s mode of putting the question, and 
finally consented to their being sworn in. 

Q. Before you wrote this letter to Hardy, hadn’t you written to General Wager Swayne 
upon the subject of getting Judge Busteed’s court-room, in which to hold meetings of the 
loyal league.—A. I never wrote to General Swayne on the subject. 

Q. Was such an application made by you orally to General Swayne.—A. No, sir. 

Q. Was it made by any person with your knowledge.—A. I do not know of any applica¬ 
tion having been made. 

Q. Was there any talk between you and any other person upon the subject.—A. I heard 
the place spoken ot as a good place for the purpose; but never heard anything definite in 
regard to it. 


273 


Q. You stated that when you were sentenced you remarked to the judge that you had 
nothing to do with the falsification of the guard-house docket, and that you had gone to the 
guard-house to see the docket, as you have stated here to-day.—A. Yes, sir. 

Q. Do you know how much time you consumed in your address to the court upon that 
occasion.—A. But a very few minutes ; very brief; just spoken on the spur of the moment, 
without preparation; not more than two or three minutes at the outside. I did make the 
appeal to you. 

Q. You were not interrupted by the court were you, whether it was long or short.—A. 
No, sir. 

Q. Heard you patiently until you concluded.—A. Yes, sir. But my opinion is that when 
I was making that appeal about my integrity, I could see feeling in the judge’s face; I 
thought I could; but what it was I could not tell, of course. 

By Mr. Smith : 

Q. Who requested these lawyers to prosecute you.—A. Judge Busteed. 

Q. What lawyers do you refer to when you say several refused to prosecute.—A. D. C. 
Anderson, and Peter Hamilton, I recollect. I do not know of any others now. 

Q. Mr. Martin, the district attorney, was there, was he.—A, Yes, sir. 

Q. Did he take any part in the prosecution.—A. My impression is he did not. 

By Judge Busteed: 

Q. What do you mean when you say Judge Busteed requested lawyers to prosecute 
you.—A. I mean that he requested them to aid in the prosecution. He spoke to them one 
after another in open court, requesting them to. 

Q. Didn’t District Attorney Martin say, upon the trial of your case, that Major St. Paul 
would not aid him in its prosecution, and didn’t he ask the court, in open court, to assign 
him associate counsel.—A. I think there was some request made of that kind. 

Q. Was it not in this connection that Judge Busteed asked these gentlemen to aid in the 
prosecution.—A. Yes, sir ; it was at that time. 

Q. Do you know whom he asked and who refused Wasn’t it Percy Walker and William 
Boyles.—A. I think four or five were asked. I recollect Anderson and Hamilton, but not 
others. I think, however, Percy Walker was ; Boyles I don’t recollect. 

Thursday, February 4, 1869. 

Lawrence Worrall sworn and examined. 

By Mr. Smith : 

Question. When did you come to Mobile.—Answer. In July, 1865. 

Q. Did you come with Judge Busteed.—A. I went there with him. 

Q. You generally returned about the time he left aud went with him to New York.—A. I 
did at that time. 

Q. Did you generally.—A. No. 

Q. Did you generally leave for the north about the time he did.—A. No, sir. 

Q. You generally go away every summer, do you —A. Yes. 

Q. Aud you go to New York.—A. Yes. 

Q. How long have you been on intimate terms with Judge Busteed.—A. Upwards of 16 
years. 

Q. You were clerk of the United States district court of Alabama.—A. I was. 

Q. You were district attorney at the same time.—A. Not all the time. 

Q. A part of the time.—A. A part of the time. I do uot know that I can say I was dis¬ 
trict attorney. I was acting district attorney ad interim under appointment of Judge Wayne. 

Q. Then you have been commissioner in bankruptcy.—A. I have been register; l am 
register now. 

Q. How long have you been register in bankruptcy.—A. Since December, 1867. 

Q. You were also a practitioner in Judge Busteed’s court.—A. Yes. 

Q. Who is your partner. Are you and Mr. Boyles partners.—A. No; nor never have 
been. 

Q. Did you and Mr. Boyles never, upon any plea, divide the fees.—A. No, sir. 

Q. You say you did not issue bills of cost.—A. I say I did not issue any bills of cost. 

Q. Have you collected auy.—A. The bills of cost were made out invariably, I think, by 
Judge Cuthbert. 

Q. Under your direction.—A. Judge Cuthbert was under my direction. 

Q. Did you not direct him as to the amount of cost he was to tax.—A. When I went from 
New York, I took with me from the clerk’s office there a number of printed blanks of the 
clerk’s fees, and gave Judge Cuthbert general directions to tax according to those blanks. 

Q. Were these tax bills in accordance with the acts of Congress.—A. 1 did not examine 
them. I believe they were. 

Q. Do you say that Judge Cuthbert did not tax bills of cost under your direction.—A. Not 
under my special direction. He had my general direction to tax the bills of cost according 
to the rates in the printed bills. 

18 B 


274 


Q. What attention did you give to the duties ofyour office.—A. I was occupied most of the 
time in the United States commissioner’s office and paid very little attention to the clerk’s 
office. 

Q. You held these three offices, United States commissioner, district attorney, and clerk.— 
A. While I was acting district attorney, Judge Cuthbert was the acting clerk. He signed 
his name as acting clerk and had the general management of the office ; but I held the three 
offices. 

Q. I understood you to say you did nothing in the discharge of the duties of clerk.—A. 
No ; 1 did not say that. 

Q. What duties, then, did you discharge.—A. I attended in court every day the court was 
held, I think, as clerk. 

Q. Yes; before you were appointed district attorney. Did you attend as clerk after that.— 
A. I attended at the bar as district attorney. 

Q. And you paid no attention to the duties of clerk.—A. I did not say that. 

Q. Well, what was it you did, then.—A. After I ceased to be district attorney I went back 
to the clerk’s office and took charge of the clerk’s office. 

Q. While you held the office of clerk did you not consider it your duty to see whether 
proper cost-bills were made out.—A. If my attention had been called to it I would, but my 
attention was never called to any irregularity of that kind in any charge that I now recol¬ 
lect of. 

Q. Is that your receipt.—A. It is. 

Q. Were you clerk then.—A. Certainly. 

Q. Was the award in that case in favor of the parties named in that receipt. 

The receipt was read and admitted in evidence, as follows: 

“James J. Connellys. 139 Bales of Cotton. 

“Received of Messrs. W'alsh, Smith &, Co., claimants, the sum of $50, deposited for costs 
and expenses, to abide the decision of the court. 

“LAWRENCE WORRALL, Clerk. 

“Mobile, January 8, 1866.” 

Q. What did you ever do with that money.—A. I presume it was deposited in the registry. 

Q. Did not Connelly succeed in establishing, his claim as a salvor in that case.—A. I think 
he did not. I do not recollect the facts distinctly. My impression is that he did not succeed 
as salvor ; that the court awarded some money, but not by way of salvage. 

Q. In what way, then, was it.—A. He was awarded something, I think, for meritorious 
services in rescuing the property, but he could not be allowed salvage, because my impres¬ 
sion is that he was captain, or mate, on board of the vessel on which the salvaged property 
was. 

Q. Do you swear that John Connelly was a mate on board that vessel.—A That is my 
impression. 

Q. Was lie not simply a fanner, living near the wreck, and he went down with his hands 
and saved the cotton.—A. I do not think I ever saw Connelly, but the facts of the case were, 

I think, as I have stated. 

Q. Well, something was awarded him.—A. I think'so ; I cannot say what. 

Q. The costs of the proceeding were taken out of the property itself, were they not.—A. 

I think not; not the costs and the expenses. 

Q. Were you afterwards called upon for that money by my sou.—A. No ; I never saw your 
son about it, as I recollect, but I have been called upon about it since I have been a regis¬ 
ter in bankruptcy. 

Q. Was not the order of Walsh, Smith & Co. presented and the money demanded of 
you.—A. Not while I was clerk, as I now recollect. 

Q. After the case was settled, why did you not send the money back.—A. I do not recol¬ 
lect that particular case. I recollect receiving that paper, and if the committee will allow 
me I will explain under what circumstances I saw it. After I was appointed register in 
bankruptcy an old gentleman presented himself at my office with that paper and said he 
wanted the money. I told him that I was no longer clerk; that I had nothing at all to do 
with what pertained to the clerk’s office. He insisted that I should give him the money, and 
said that he did not look to the clerk, but to me ; that he had my receipt, and if I did not 
pay it he was going to take me before a justice of the peace. His manner was very violent 
. ami offensive. I asked him to step out on the other side of the door. 

Q. This order was dated August 3, 1866. When were you appointed register in bank¬ 
ruptcy.—A. I was nominated the latter part of November and appointed the first part of 
December, 1867. 

Q. Do you know whose handwriting that is— whether it is my son's.—A. I do not know 
your son’s handwriting at all. 

Q. You have seen a great many papers presented by him in court.—A. I cannot say. I 
have seen a great many papers from your office. 

Q. Do you recognize that handwriting as from my office.—A. I do not. 

Q. You say my son never called upon you for that money.—A. I do not recollect it. I 
do not think he did. 


275 

Q. And that you did not reply that the money went into Jacob Wilson’s hands.—A. I do 
not think I did. 

Q. Where do you say the money now is.—A. I do not know. I presume in the registry 
of the court. It was left there to abide the decision of the case. 

Q. What do you mean by the registry of the court. In whose hands was the money left.— 
A. In the bank. 

Q. You deposited this money in what bank.—A. I think the account was then kept in the 
First National Bank of Mobile I presume it w.as deposited there. 

Q. Did not my son present to you that order about the date of it, August 3, 1866.—A. I 
was in New York at that time. 

Q. Very well, as soon as you returned. When did you return.—A. In November, 1866, 

I think. 

Q. And you say that order was not presented to you then.—A. I say I do not recollect 
that it was. I do not know whether it was or not. 

Q. You have never paid the money over.—A. I say I do not recollect that I have paid the 
money. I have never paid it over on that order. 

Q. Have you ever paid it to anybody ; if so, to whom.—A. I do not recollect. We had 
a great many salvage cases then. We had, perhaps, a hundred cases. 

Q. Do you mean to say you do not know whether you kept tlie money personally, or 
whether you kept the money in the bank, as clerk, or register.—A. I have not any money 
that pertains to the court. 

Q. Do you know whether you kept the money yourself.—A. I know I did not. 

Q. If you did not, what did you do with it.—A. I deposited it in the bank. 

Q. To whose credit.—A. To the credit of the court. 

Q. Have you any doubt about it.—A. I have a doubt about having deposited that identi¬ 
cal $50 by itself, because the bank officers did not like to receive small deposits. 

Q. Have you any recollection of depositing that money in bank.—A. I have not; but it 
was m} r custom to deposit in bank all the moneys belonging to the court. 

Q. Do you say you did not give Judge Cuthbert directions as to the amount of costs he 
was to tax, and that all or most of the items that were taxed under your instructions were 
not 50 to 100 per cent, above the rates fixed by the act of Congress of 1853.—A. I will state 
that I gave Judge Cuthbert no instructions whatever to tax costs in violation of the act of 
1853. 

Q. You gave him the amounts that were to be taxed, did you not.—A. I gave him those 
blanks, with general instructions to tax according to the rates prescribed in them. 

Q. How much did you instruct him to tax for stipulation in admiralty.—A. I did not 
specify any sum. 

Q. Did you not instruct him to tax $3 25 or $3 75.—A. No : neither. 

Q. Did he not ask you to give him directions, stating to you that your rates were different 
from those he had before charged.—A. I do not recollect that he did. 

Q. How many affidavits have you taken in the bankrupt court from creditors proving their 
debts; liow many proofs of claims.—A. I have no memorandum of the number; 1 think 
there may have been 50. 

Q. I do not believe but there was as many as that in Mobile. How many were there in 
the Davis, Hall & Co. case alone.—A. That is the only case I recollect of in which there 
was any considerable number. In that case, I think, there were 12 or 15 affidavits taken 
before me. 

Q. How many in the Johnson case were taken before you.—A. Not more than three or four. 

Q. How many creditors were there in the Johnson case.—A. There were about 25 or 30. 

Q. You had a printed form that you filled up.—A. I had. 

Q. In what did that form differ from the form.prescribed by the bankrupt act at page 172.— 
A. I think it conformed to the form prescribed by the bankrupt act and adopted by the 
supreme court. 

Q. How much did you charge each creditor for taking these affidavits.—A. I charged $5 
for most of the proofs in the Davis, Hall & Co. case. 

Q. Did you inform Judge John Bragg that you charged $5 for each affidavit of the creditors 
in bankruptcy because Judge Busteed had made a rule allowing it.—A No, sir. 

Q. Did you not demand $5 from Thomas A. Hamilton for the affidavit of one of his clients, 
and did he not object to paying it, and did you not tell him that you were obliged to charge 
it in order to get remuneration for your services.—A. I think it likely that I charged Ham¬ 
ilton $5; but I do not think it likely that .I made any such remark. 

Q. Do you dare say whether you did make it or not.—A. I do not recollect to have made it. 

Q. Have you ever, and if so, in what instance, conformed to this rule of the supreme court: 
“for every proof of debt, 25 cents.”—A. I invariably complied with it, unless I chose to 
remit the 25 cents. In cases of professional gentlemen I never asked them for any money. 

Q. In what particular does the affidavit for which you charge $5 differ from the proof of 
debt for which the bankrupt law prescribes the charge of 25 cents.—A. When the proofs of 
debt are taken in New York and sent to me by the register in New York, enclosing 25 cents 
for filing the paper, that is all the fee I receive 

Q. For filing it.—A. Yes. 


276 


Q. But whenever you take affidavits for the proof, you charge $5.—A. I do not say that I 
charge $5 in every instance. 

Q. In what instance have you deviated from it. Name the parties.—A. I can tell you 
more cases where I have adhered to it than where I have deviated from it. I cannot now recall 
every case. The majority of creditors in all these cases reside elsewhere than in Alabama; 
where there is one claim belonging to an Alabamian, there are thousands of claims belonging 
to persons residing elsewhere. My entire emoluments from that source cannot exceed $>250. 

Q. “ For every proof of debt, 25 centsnow, for how many “proofs of debt” have you 
charged the parties $5 —A. I do not recollect the individual cases; but 1 have had occasion 
to use very few of my blanks 

Q. On what ground do you charge the parties $5.—A. On the ground that I am entitled, 
“for taking depositions, to the fees now allowed bylaw.” Every register iu the country 
considers himself entitled to charge the fees allowed for taking depositions. 

Q. What distinction do you make between a deposition and a proof of debt, on which you 
raise your fee from 25 cents to $5.—A. One is a deposition, and must conform to the act of 
Congress, and I must examine and certify also that the proof of claim is satisfactory. The 
distinction is drawn by two or three judicial decisions. The $5 includes the filing of the 
proof, as well as the taking of it. 

Q. If you put your charge upon the ground of a deposition, how is it that in every case 
you came to the sum of $5.—A. The depositions are all about the same length. I had not 
looked into the matter; and the reason I made that charge was because I understood it was 
the charge made in New York. I received a letter from Mr. Pomeroy, a lawyer of New York, 
whom I had asked to call upon Judge Dayton, a friend of mine, and a register in bank¬ 
ruptcy, and make some inquiries upon the subject. He did so, and ascertained that his 
charge was $5 for taking depositions. There was no question made about it in any case that 
I recollect of, until Mr. Hamilton one day stepped into my office and asked, “How do you 
make up that charge of $5 ?” I said I was allowed the fee for taking depositions. I never 
knew a case in Mobile where the charge for taking any deposition was less than $5, and I acted 
in perfect good faith. 

Q In some conversation with Mr. Hamilton, did you not tell him that you would go and 
see the judge about it, and did you not afterwards tell him that the judge said it was all 
right.—A. I do not think I did, because Judge Busteed was then in a very precarious state, 
and I could not see him on business. 

Q. Did not Davis, Hall & Co., bankrupts, and their creditors, propose to withdraw the 
matter of their bankruptcy from the court, pay all costs, and take possession of and administer, 
through a trustee agreed on, the assets, releasing the bankrupts; and did you not adjourn 
the matter to the next day to take the judge’s opinion; and on the next day, when the creditors 
met, did you not state that you had consulted the judge, and that he approved your action.— 
A. At the time of the meeting of the creditors of Davis, Hall & Co. you submitted some 
proposition to withdraw the entire matter from the court. I told you that as register I had 
no jurisdiction, and could not act upon it. You asked me to submit it to the judge. I told 
you that Judge Busteed was in such a condition of health that I could not submit it to him, 
and the meeting adjourned. At the next meeting you again asked me to submit it to the 
judge, and I told you the judge was still unable to attend to it. At the next meeting I 
stated that the judge had looked at it, and had said that he did not see the authority in the 
bankrupt law for the proposed action 

Q. Did you not make that adjournment yourself—A. I did it at request of the creditors, 
and not upon my own motion. 

Q. Did you not the next day, in the face of all the creditors, announce that you had con¬ 
sulted the judge, and that he had decided adversely to the proposition of all the creditors ; 
and did not the bankrupts take themselves out of court.—A. All the creditors did not join in 
the proposition; the First National Bank of Mobile, Horatio Seymour, and Koscoe Conkling. 
of New York, did not. The judge, upon such consideration of the case as his health allowed 
him to give, said that the arrangement proposed was one not known to the bankrupt law. 

Q. Have you not demanded large deposits from various suitors in the court to secure pay¬ 
ment of costs.—A. I have never demanded anything. 

Q. Did you not demand a deposit of their money.—A. I have no recollection that I myself 
ever made such a demand. 

Q. Have you received various deposits of money from parties in court.—A. I presume I 
have. 

Q. Did you ever account for one dollar; if so, in what instance.—A. I believe in every 
instance. There has never been any question between me and the bar about any matter of 
the kind, except this one matter of Mr. Hamilton, in which he inquired where I found the 
right to make the charge I made tor taking depositions in bankruptcy. 

Q. Did you ever pay over any of these deposits.—A. I think I have. 

Q. Name any one case in which you have paid them.—A. I do not recollect them partic¬ 
ularly. It you will suggest a case in which a deposit was made I will tell you what I have 
done with it. 

Q. How do you recollect that you have paid over the deposits.—A. I must have made 
some disposition of them, or there would have been some discussion about them. 


277 


Q• ^ tli6 Natchez case, United States Commissioner Worrall, 32 reports, $10 each, 

$320; these cases were all consolidated in one, and you took $1U in each case._A. They 

were not consolidated. ' J 

Q. “District Clerk Worrall—commission, one per cent, on gross proceeds of sales— 
$93,039 50, of which were paid in court $50,756 06; extended, $930 39.” Did you receive 
that.—A. I think I did. J 

Q. Well, on what ground did you collect and take one per cent, on $43,000 or $42,000 
and odd—which was not paid into court.—A. It was constructively all in court. 

Q. Constructively.—A. Yes. 

Q. Where do you find any law for charging one per cent, upon moneys which had not 

actually been paid into court.—A. I do not know. There is no question at all about that_ 

not the slightest. 

Q. “ United States District Clerk Worrall, clerk’s fees, $1,265 10.” Will you please 
explain how your clerk’s fees amounted to that much.—A. I do not know that they amounted 
to that. I think that Judge Cuthbert taxed and got all the fees except the one per cent, and 
the reports. 

Q. Do you say that Judge Cuthbert got all the fees in the clerk’s office.—A. I did not 
state that; I said all the fees except the one per cent, and the reports. He received them, 
and I did not require him to account to me for them. 

By Mr. Churchill : 

Q. Did you not pay him a salary.—A. No, sir. 

Q. What were your terms of employment with him.—A. My terms of employment with 
him were, that he might have all the fees of the office during the summer months, without 
respect to me, provided they did not exceed $1,800. 

By Mr. Smith : 

Q. Well, I would call your attention to this one charge of $1,265 10; please explain how 
it was possible for that amount, or one-half that amount, of fees to be taxed by law.—A. I 
do not believe the clerk’s fees ever amounted to that. This is an anonymous pamphlet 
which has been circulating around New York, and contains a great many garbled statements. 
I have never looked over Judge Cuthbert’s bill of costs and added them up ; but I know this 
pamphlet entirely misrepresents the amount of compensation he received. 

Q. When did you first read the charges which I made against Judge Busteed.—A. I think 
I read them first in Mobile, in December last. 

Q. You expected, then, to come here and give an account of them, did you not.—A. I did 
not suppose you would have the temerity to carry such false and malicious charges to Con¬ 
gress. 

Q. Did you not expect to be called as a witness: did you not see that Congress had 
ordered an inquiry into the conduct of Judge Busteed.—A. I knew that the whole thing was 
gotten up to induce Judge Busteed to resign. 

Q. What did you base that belief upon.—A. Upon the falsity of the charges. 

Q. Did you not suppose it was possible that you would be called to account from the man¬ 
ner in which you were implicated with Judge Busteed.—A. No, sir. 

Q. And did you not make any inquiry to inform yourself whether the facts alleged against 
Judge Busteed were true or not.—A. I knew that many of the facts alleged in this (Hamil¬ 
ton’s) pamphlet were not true. But as they were being circulated industriously with the 
view to injure myself, as well as Judge Busteed, I saw Mr. Lathers, the president of the 
insurance company, who was the party most deeply interested in the salvage matter, and 
made some explanations in regard to it; he is acquainted with my father’s and my father-in- 
law’s families, and the thing did not hurt me very much with them. 

Q. Explain how the costs in this case amounted to $1,265 10, or one-half of it.—A. I 
have not said that they do amount to that, and I do not believe they do. 

Mr. WOODBRIDGE. The witness has said he does not know what they amount to, but he 
does not believe they amount to that sum. 

Q. Could your costs under the law amount to the sum of $1,265 10, or one-lialf that sum ; 
if so, explain how.—A. There were a number of salvors in each case, and the costs must 
have been high. The facts of the case were these: the Natchez was wrecked in Mobile bay ; 
there were then about 30 ships lying in the bay waiting for cargoes. As this cargo was 
thrown from the wrecked vessel, the different boats put off from these ships, each boat of 
course having a crew, and each of these boats’ crews libelled separately. First the crews of 
the different ships filed their libels, then there was a subdivision of these boats by the 
respective ships. That made a large number of claimants. 

Q. Did I not embody, originally, seven or more of these claimants in every libel I had put 
into court.—A. I do not recollect; I know this : there never was the slightest dispute about 
any item or bill of costs in that matter, except the marshal’s. 


278 


Mr. Smith read the following: 

“ District court of the United States, southern district of Alabama. In admiralty. 
“Charles C. Newberry vs. 60 bales of cotton; William C. Piggott vs. 27 bales of cotton, 
and others against sundry bales of cotton, part of the cargo of the lighter steamer Natchez. 

“ In these cases, which have been consolidated, a motion is made by the claimants for 
the delivery to them on stipulation, of the property described in their respective claims, and 
Mr. R. H. Andrews appears in behalf of the United States to oppose said motion. Proof 
being made to the court that the property libelled and now in possession of the United States 
marshal is in a perishable condition, and that certain of said property, to wit, 227 bales of 
cotton before its shipment on the Natchez, bore the proprietary marks of the United States 
and was in good order and sound at the time of said shipment; and that these marks were 
erased and others substituted; and it being suggested to the court that the identification of 
said cotton by the submergement thereof in the waters of the bay has been rendered difficult, 
it is ordered that 454 bales of said cotton of the average condition of the whole, without regard 
to marks, be retained by the marshal, and be sold by him under the rules of the court and 
the direction of Mr. Andrews, and the proceeds thereof be paid into the registry of the court 
to abide the final decree in the cause. It is ordered that the remainder of said cotton be 
delivered to said claimants according to their respective claims upon their entering into stip¬ 
ulation therefor with satisfactory security to be approved by the clerk of the court, at the rate 
of $150 per bale, conditioned as directed by the rules of the court. 

“RICHARD BUSTEED, 

“ United States District Judge for Alabama .” 

Q. How can you make out that your clerk’s fees, independent of the one per cent., and 
independent of your allowance as commissioner, could amount to $1,265 10, or one-half of 
it.—A. As a lot of cotton would be brought up to the city, it would be seized by the mar¬ 
shal ; a libel would be filed, and there would be a writ of seizure and a monition. There would 
also be the printing ; of course, the notice would have to be published, and in the clerk’s fees 
I imagine that is one item. 

Q. How many libels were actually filed in these cases.—A. According to this pamphlet 
there must have been 32 libels, and I think some of these were consolidated in cases of the 
parties belonging to the same ships. 

Q. Did not the case of Charles Elms and others against 293 bales of cotton, and the case 
of Edward A. Ponsland and others vs. 104 bales of cotton, each embrace several distinct 
salvors of several distinct lots of cotton, put by me as the proctor in one libel, simply stating 
that A. B. had taken so many, and C. D. so many.—A. 1 do not recollect. The papers will 
show precisely. 

Q. The decree in these cases of distribution was on the net proceeds.—A. There was no 
single decree covering all the cases; there was a separate decree in each of the 32 cases. 
Peter Hamilton, who represented the fund, objected to the marshal’s fees; said I, “ Have you 
any objection to my fees? ’ he said, “No; they are all right.” He had no objection what¬ 
ever. They were anxious to have the matter closed before summer; I remained and gave 
my attention to it. There had to be a great many calculations made; there were perhaps 
200 salvors altogether. 

Q. When and where did Hamilton make this statement, to you, and who was present when 
he made it.—A. When the matter was being settled in my office, and no one was present with 
me but himself. 

Q. Judge Busteed has just stated that the fees always came out of the fund ; then he is 
obliged to be informed of the fees before he makes distribution, is he not.—A. The fees, I 
think, are within the discretion of the judge. They may come out of the fund, or out of 
the other side. 

Q. The amount of fees must be known to the judge before he makes his final order of 
distribution.—A. Not necessarily ; it was not in this case, for, as I said before, the fund was 
only constructively in the court. Judge Busteed made an order that the entire fund should 
be placed in court; but the order was not complied with. 

By Mr. Churchill: 

Q. You say that in this case the judge did not know what the fees were because the fund 
was only constructively, not actually in court.—A. Yes. 

Q. He knew the amount of the fund.—A. Certainly. 

Q. Then why did he not, know the amount of fees as well as though the fund had been 
in court.—A. 1 presume his attention was not called to it. Judge Busteed was in Mont¬ 
gomery when these salvage matters were being adjusted ; I was in Mobile. The judge 
never troubled himself about clerk’s and register’s fees, unless they are brought before him 
for official action. 

Q. Was not the distribution in these cases upon the net.—A. There was a separate decree 
in each case, and the distribution was made according to that decree. 

Q. Was not this distribution based upon the net proceeds.—A. I do not know; I cannot 
tell, with no data before me. 

Q. If it was based upon the net, to get at the net, did not the amount of fees necessarily 
have to be passed upon by the judge.—A. No ; the fund was only constructively in court. 


279 


Q. Explain how the judge could get at the decree upon the net without taking first the 
costs from the gross proceeds.—A. I do not know; I know this fact: the judge stated the 
rule that should apply, and I made the computation in accordance with that rule ; I distributed 
the salvage, and there was a cheek for whatever balance the claimants were entitled to, drawn 
and given to the claimants. 

Q. What was the object in making up these reports, upon which you charge $10 each, if 
it was not to ascertain the whole facts about the distribution.—A. I had to report how much 
each claimant was entitled to; the judge make a general rule, and I .had to ascertain the 
amount, and make my report according to the rule, and the award was made according to 
the service which each salvor rendered. Some of the salvors got a certain percentage,°and 
others a greater. 

Q. If the decree, whether it was separate, or embraced many cases in one, was based upon 
the net, did you not necessarily have to inform the judge in your report, or in some' other 
way, what were the costs, so that he could get at the net.—A. I made various reports ; I did 
not make one report only. 

Q. Just answer my question.—A. I cannot answer your question. 

Q. Did not Judge Cuthbert apply to you for an increase of his compensation.—A. I do 
not think he did ; I do not recollect that he did. 

Q. Did you not say to him that your pecuniary condition was not as prosperous as he 
(Judge Cuthbert) had supposed; that all you and Andrews got went into a common fund 
for the support of the judge’s family.—A. I could not have told him so, for that was not the 
fact. 

Q. How much money did you ever make Judge Busteed a present of.—A. I never made 
Judge Busteed a present of any. 

Q. You generally travelled with the judge, did you not.—A. No. 

Q. Did you not frequently.—A. I went down with him ; but I rarely came up with him. 

Q. Who paid the travelling expenses —A. I paid mine; that is all I paid. 

Q. How much money did you make the judge’s wife a present of.—A. I never uiade his 
wife a present of anything. 

Q. Did you ever make a present to any member of his family.—A. I never made a present 
to any member of his family. My relations with his family were of the most affectionate 
character. 

Q. How much money have you realized since you have been in Alabama, from sources 
connected with the court.—A. I have no idea of that. 

Q. How much do you suppose.—A. I can hardly suppose; I have not received more than 
enough to meet my expenses. 

By Mr. Eldridge : 

Q. Did I understand the witness to say that he had not received more from his office in 
Mobile than enough to pay his expenses.—A. Not more than enough to meet the expenses 
of the office and my own personal expenses. Of course, I expect to receive more in these 
bankrupt cases, which have not been adjudicated. My fees have not been adjusted in a 
single case, because I have not got to that stage yet where they can be adjusted ; I have not 
made my final report. There are a great many things yet remaining to be done; I am very 
anxious to get down there to settle them up. 

By Mr. Smith: 

Q. What amount of money have you required each bankrupt to deposit.—A. $70; the 
same as is required in Maine and other States. 

Q. Does not the law say $35.—A. No. 

Q. Does not the law say $50.—A. The law said that $50 shall be deposited with the clerk 
to be delivered to the register. The judges in various parts of the country have made 
provision for the clerks and marshals. The judge of Maine has required that $20 additional 
shall be deposited to pay tire clerk’s and marshal’s fees I suggested to Judge Busteed that 
that rule ought to be adopted in our court, and the judge adopted it. 

Q. What is the $50 to pay.—A. The $50 is required to secure the register’s fees—that is the 
language of the law ; the reason I cannot tell how much I made in Alabama is that this 
money, if it is not used up, will, of course, have to be refuuded ; I have given bonds in 
$15,000 for the faithful performance of the duties of my office; and Mr. Charles Walsh and 
Robert W. Smith, men of the highest respectability and abundant responsibility, are sureties 
on my bond; no officer is required by the law to perform any service until his fees are 
secured. 

By Mr. Churchill : 

Q. Was there any other person in the clerk’s office as assistant besides Judge Cuthbert.— 
A. No; I had only one assistant—Judge Cuthbert. 

Q. And he could not receive more than $1,800.—A. He could not; that was the under¬ 
standing. 

Q. And you do not suppose he did receive more.—A. I do not; except that I was told 
of one item of $50 that Percy Walker had paid him ; and in looking over his monthly state¬ 
ment I did not find that; beside that, he kept himself within the $1,800, as far as I am aware. 


280 


Q. You received in the Natchez cases about $2,500.—A. I canuot tell. 

Q. 1 mean you received $1,500 that came into your own hands.—A. Yes. 

Q. Have you any doubt that there was paid to Judge Cuthbert in these cases over 
$1,000.—A. I do not know ; I cannot swear to the precise amounts in any of these cases. 

Q. Have you any doubt that the clerk’s fees paid in these cases amounted to over $1,000.— 
A. We did not have all these bills together; I do not know what the entire amount of costs 
was; but in settling the bill Mr. Hamilton remarked that he did not like the marshal’s 
charges, and he was.going to appeal from them. 

Q. What other case do you remember in which, either as clerk or referee, or by way of 
percentage, or altogether, you received over $1,000 —A. I do not think there was any other 
case; I do not recollect any other; there may have been other cases, however; that case 
occupied the attention of the court for some months and my exclusive attention for a long 
while; it was the only case which I now recollect in which the fees were of any considera¬ 
ble amount. 

Q Do you recollect an admiralty case which occurred after you became clerk, in which 
Captain William Otis and Judge Jones represented the salvors, and I represented the vessel. 
It was the case of a vessel that was wrecked in the lower bay and went to pieces with a 
large cargo of cotton, and Captain Otis went with his sea-going steamer and saved a large 
part of the vessel and cargo; it was a very noted case ; do you recollect it.—A. I recollect 
there was another salvage case, now that you have called my attention to it; the amount 
involved, I believe, was very large, but not nearly as large as the Natchez case. 

Q. Was it not very nearly as large.—A. My recollection is that it was not; it may have 
been. 

Q. How much fees did you get in that case.—A. I do not recollect. 

By Mr. Eldridge : 

Q. You say your fees from your several offices do not amount to more than your expenses ; 
without being precise, state the sum ; what do you mean by that.—A. I mean this : It is an 
expensive country to live in; my wife is with me there ; whenever I go from Mobile to 
Selma the railroad fare for each of us is $16, and all the hotels charge $4 50 or $5 a day, and 
poor accommodations at that; so that it costs me $70 or $80 to go and come from Selma. 

Q. What do you mean to be the aggregate sum of your expenses and your receipts.—A. 
As district attorney I received nothing. 

Q. Give us some idea; answer my question as near as you can.—A. I cannot include in 
this estimate the bankruptcy fees. 

Q. Leave that out.—A. I apprehend that $7,000 would cover everything I received 
during the whole time I was clerk, independent of my services in the bankrupt court. 

Q. For how many years.—A. From 1865 to December, 1867. 

Q. How much did your fees as commissioner amount to.—A. I include in that estimate 
my fees as commissioner and clerk. 

Q. Have you a claim against the United States for services as district attorney.—A. I 
made claim a short time since, but they deemed the two offices incompatible, and the claim 
was rejected ; I had several counterfeiters arrested, indicted and tried, and I thought I was 
entitled to some compensation for my services. 

Q. What was the amount of your claim.—A. I think $500 or $600. 

Q. For how long a period.—A. I w'as appointed in March, and Mr. Martin, who super¬ 
seded me, was appointed in July, but I think did not qualify until November or December. 

Q. You think that $7,000 will cover all your receipts, whether as tax fees or costs, or any¬ 
thing else that was paid you in connection with your office, except fees in bankruptcy.—A. 
I do. 

Q. Does this $7,000 cover the payment to Judge Cuthbert as clerk.—A. No ; it is exclu¬ 
sive of what I have paid to the clerk. 

Q. Now, in the bankrupt court what is your claim. What, in round numbers, do you 
suppose is your due there.—A. It will depend upon whether I am allowed to go on and com¬ 
plete these cases. 

Q. I am speaking of your claim for services up to the present time.—A. I am acting in 
two congressional districts, and cannot form an estimate ; the amount will be quite large. 

Q. Give us the best idea you can ; will it be $10,000 or $15,000.—A. No; I do think it 
will be $15,000 as it stands now ; if I were dismissed from office to-day I hardly think it 
would be $10,000. 

Q. What is the amount deposited with you as security for the fee of $50 in each case.— 
A. About $25,000. 

Q. Does that include the marshal’s and clerk’s fees, or only the $50 for the register’s fee.— 
A. The clerk has received my fees in a good many cases ; and I, of course, have received 
the clerk’s and marshal’s fees in other cases. 

Q. What have you done with the money.—A. Some of it is in the bank at Mobile and 
some of it is in New York. 

Q. And some of it you have spent.—A. Yes ; and some of it I have spent. 

Q. I thought that the other accounts about balanced ; that your expenses and your 


281 


receipts from the other offices balanced each other.—A. I did not hold the other offices while 
I was register in bankruptcy. 

Q. Have you ever given any of that money to Judge Busteed.— A. No ; not one cent. 

Q. Has he ever given any of it to you.—A. No. 

Q. Have you ever given any of it to any person.—A. No. 

Q. Has any of that money, in any manner, been of benefit or service to Judge Busteed.— 
A. Not in the least; I have never offered or proposed to give any of it to Judge Busteed ; I 
have never had any conversation with him at all upon the subject. 

Q. Has it ever given him any service.—A. No; it has not. 

Q. Have you ever made any return of the emoluments of your office of clerk, as required 
by law.—A. To whom. 

Q. As required by law. Is there in the clerk’s office at Mobile any full and complete state¬ 
ment of the fees received by you.—A. No. 

Q. Can you receive costs without putting them upon your fee-books.—A. Judge Cnthbert 
kept the books in the clerk’s office. The execution docket contains the statement of all the 
fees received by me. I went into the clerk’s office as an accommodation to Judge Busteed, 
to enable him to hold his court. If a suitable man could have been found in Mobile who 
could have taken the test oath I would not have remained ; if Judge Cuthbert could have 
taken it I would not have remained. I considered the emoluments of the office very incon¬ 
siderable, and I was not desirous of retaining it. 

Q. When a man in Mobile goes into bankruptcy, from that time to the meeting of the credi¬ 
tors and the appointment of an assignee, what becomes of his effects.—A. In 99 cases out of 
100 he has no effects at all. 

Q. Was there not in Johnson’s case a stock of goods valued at something like $30,000.— 
A. No ; the stock of goods was valued at $6,000 or $7,000. 

Q. Was not the stock of goods of Johnson, bankrupt, turned over to Jacob Wilson from 
the time he went into bankruptcy until an assignee was appointed.—A. Yes. 

Q. How long was that.—A. Charles Walsh was appointed the assignee, and he qualified 
as such, but he was so much annoyed that he begged me to get the matter taken off his hands. 
I got an order from the judge releasing him about two weeks after his appointment. 

Q. Wilson was less than a month in possession of that stock of goods ; what was there to 
hinder him from stealing as many of those goods as he wanted.—A. He took an oath for the 
faithful performance of his duty. 

Q. Have you known, in one single instance, the requirement of the bankrupt law to be 
complied with—that until an assignee is appointed the effects of the bankrupt shall be turned 
over to the marshal.—A. There is no such provision of the bankrupt law ; the bankrupt law 
requires the bankrupt, upon filing his petition, to surrender his effects to the register. 

Q. You say the law does not make any provision for turning over the effects to the mar¬ 
shal.—A. I do, certainly—in cases of voluntary bankruptcy 

Q. Do you know of there having been one dollar of bankrupt assets put into the hands of 
the marshal, Healy, from the time the cases went into court until they were passed over to 
an assignee.—A. I do not know. 

Q. Do you not know that none have been turned over.—A. No. I know that in some 
cases I think they have been—either to the marshal or his deputy. When Wilson went away 
I wanted Healy to appoint a custodian, as he knew of suitable parties to put in charge of 
such matters and I did not. 

Q. Did you, while Jacob Wilson staid there, ever put one dollar of the bankrupt’s effects 
in the hands of the marshal.—A. There was no law that required it. 

Q You ahvays put them into the hands of Wilson.—A. No. 

Q. Into whose else hands did you place them in Mobile.—A. There were only two or three 
bankruptcies there in which the assets amounted to any considerable sum ; in one case, and 
perhaps more, I put them into the hands of John F. Baily. 

Q. Where was Baily from.—A. He was from Massachusetts. When I first became 
acquainted with him he was in the employ of Tomeny, treasury agent; subsequently he 
was employed by Judge Kellogg, the collector of internal revenue, who said that a more 
honest and competent clerk could not be found, and that he would command anywhere a 
salary of $2,500 to $3,000. 

Q. As a clerk.—A. Yes. 

Q. What pecuniary responsibility had the man.—A. I do not know ; I know he gave good 


bonds. . . 

Q. Did his bonds cover the amount of goods you turned over to him of the parties who 

were going into bankruptcy.—A. No. „ 

Q. What responsibility was there, then, in him.—A. He had given bonds, 1 think, tor 
$20,000 or $30,000, and I supposed that he had some regard to his reputation. 

Q. Who were sureties on his bond.—A. Mr. Heidelberg, I think. 

Q. Who is Mr. Heidelberg.—A. He is a resident of Mobile, and owns real estate there. 

Q. Who else was on his bond.—A. General Pierce, Judge Kellogg, and William G. Eng- 


Q. Is not William G. England a bankrupt himself.—A. I understand that lie has gone into 
bankruptcy since I left Mobile; but when he executed his bond I supposed him to be abund¬ 
antly responsible. 


282 

Q. Do you know whether Judge Kellogg is broken.—A. I know nothing of his present 
financial responsibility. 

Q. Who is Judge Kellogg.—A. Judge Kellogg is a member of the House of Representa¬ 
tives from Alabama. At that time Judge Kellogg was considered to be a man of responsi¬ 
bility ; I thought so. 

Q. In the case of the 662 bales of cotton—they were released by the government, were they 
not.—A. Yes. 

Q. You dismissed the case upon the peremptory orders of the Attorney General.—A. I 
applied to the court to dismiss the libel. 

Q. Do you not know that my clients were made to pay over $6,000 costs in that case.— 
A. No: they never paid a cent to me or into the clerk’s office either. 

Q. Did you not just send a bill—like a mercantile bill—demanding something over $3,000 
of my clients in that case.—A. No; I never asked for or received one cent. 

Q. Do you know that John Hardy got that bill.—A. No. 

Q. Do you not know that when I refused to pay it he seized 120 bales more, without any 
process.—A. No 

Q. Do you not know that he brought an account of costs endorsed by Judge Busteed him¬ 
self.—A. No. 

Q. Who do you think he got the costs out of.—A. I do not know that be received any 
costs; I was so disgusted with the action of the government that I would have nothing fur¬ 
ther to do with the cotton cases. 

Q. Did you not get any of the costs in the cotton cases.—A. No. 

Q. Did Mr. Speed, the Attorney General, order you to dismiss the case.—A. As district 
attorney, I filed a libel—I thought I had good ground for that action—and a peremptory order 
came from Washington to dismiss the case. 

Q. Do yon not know, with reference to the 662 bales of cotton, that the Treasury Depart¬ 
ment had taken the cotton and had the case for adjudication.—A. -1 do not recollect whether 
it was seized. General Woods, who was then commander of the department of the south, 
called my attention to the transaction of the Treasury Department under James M. Tomeny, 
the supervising agent. 

Q. You seized the 239 bales of cotton in the same way, did you not, which were claimed 
by the Planter’s factory.—A. Yes ; I presume so. 

Q. You seized them from the Treasury Department, too, did you not.—A. I did not seize 
them; they were seized from the Treasury Department. 

Q. In reference to the 239 bales of cotton, did you receive these despatches which are now 
slfown you.—A. Yes. 

The first despatch was read, as follows: 

“Attorney General’s Office, Washington , May 23, 1866. 

“ L. WoRRALL, Esq., U. S. Attorney , Mobile, Alabama. 

“ Stop all further proceedings against the Planters’ factory cotton, and report facts. 

“JAMES SPEED, 

“ Attorney General." 

WITNESS. I applied to the court for a stay of proceedings upon the strength of this tele¬ 
gram, and I made a report to the Attorney General. The court ordered a stay; subsequently 
an application was made by the marshal to sell the property on the ground that it was 
deteriorating—eating itself up; the expenses of insurance, &c., were so great. 

Q. Who was the marshal.—A. John Hardy. 

Q. Did you make any resistance to the motion to sell.—A. I opposed the motion to sell. 
The order to sell was made by the court, and the cotton was sold. After the sale I received 
this second despatch: 


“Attorney General’s Office, Washington , June 25,1866. 

“ L. WoRRALL, U. S . Attorney, Mobile, Alabama. 

“ The marshal must not sell the Planters’ factory cotton. 

“JAMES SPEED, 

“ Attorney General." 

It had been sold ; and the telegram, having been nearly a week on its way, was handed 
me by Judge Cuthbert. I asked him to endorse the envelope, and then I thought it would 
be better to have the despatch itself endorsed ; and Judge Cuthbert accordingly endorsed it. 
I have it here. It is endorsed, “Received at Mobile, July 3, 1866.” 

Q. When was the despatch dated.—A. It was dated “Washington, June 25, 1866.” 

Q. What was the day of the sale.—A. I do not recollect: it was some day intermediate. 
Q. Listen to this, and say whether it is true or not. 

“The State of Alabama. Mobile county : 

“ Personally appeared before me, William Brooks, justice of the peace in and for the State 
and county aforesaid, Sherwood Hall, who being duly sworn, says that he is a messenger in 
the American Telegraph Company, Mobile office, and that he is employed to deliver de- 


283 


spatches received for persons in Mobile. That on the 26th of June, 1866, he delivered to J. 
Wilson, United States deputy marshal at Mobile, Alabama, a despatch directed to L. Wor-’ 
rail or John Hardy, and that he took a memorandum receipt in his check-book from said Wil¬ 
son for the said despatch, and that the said receipt bears date June 26. 1866, and that he 
distinctly remembers delivering said despatch to the said Wilson without refreshing his 
memory by consulting said receipt. 

“SHERWOOD HALL. 

“ Subscribed and sworn to before me, this the 2d day of July, 1866, 

“WILLIAM BROOKS, 

“ Justice of the Peace.” 

A. I do not know whether it is true or not. 

Mr. Smith read the following affidavit: 

‘ State of Alabama, Mobile County : 

“Personally appeared before me, William Brooks, a justice of the peace in and for the 
State and county aforesaid, E. D. Sandford, who, being duly sworn, says that he is employed 
in the Mobile office of the American Telegraph Company as a clerk, and that it is his regular 
duty to enter on the books the numbers and addresses and number of words of despatches 
received at Mobile, Alabama; and affiant further says that on the 25th day of June, 1866, a 
despatch w T as received at the said Mobile office from Washington city .directed to L. Wor- 
rall, United States attorney, Mobile, Alabama; that said despatch contained nine words in 
the body of it exclusive of the address and signature, and that the Washington office had 
marked said despatch with the number 16, and that on the 26th day of June, J866, the said 
despatch No. 16 was placed in the hands of the messenger, Sherwood Hall, for delivery ; 
that said despatch is the only despatch which was received at the Mobile office from Wash¬ 
ington for the said Worrall for several days previous to the 25th of June, 1866. And affiant 
further says, that on the 2d day of July, 1866, he despatched to the Washington office for a 
duplicate of despatch No. 16, of the 25th of June, 1866, and that he did this without stating 
the contents of said despatch No. 16, or in anywise referring to its contents, and that he 
received on the 3d day of July, 1866, a duplicate in the following words: 

“ ‘To L. Worrall, U. S. Attorney, Mobile , Alabama : 

“ ‘The marshal must not sell the Planters’ factory cotton. 

“‘JAMES SPEED, 

“ ‘Attorney General .’ 

“ E. D. SANDFORD. 

“ Subscribed and sworn to before me, this the 4th day of July, 1866. 

“WILLIAM BROOKS, 

“ Justice of the Peace.” 

Witness. I never saw the first despatch which is mentioned in this affidavit. 

Q. Is the despatch dated July 3 the only one you received respecting the Planters’ factory 
cotton.—A. That is the only one I received, with the exception of the despatch dated the 
23d of May. 

Q. Did you receive any other telegram from the Attorney General than the one you have 
produced here.—A. Not respecting the sale of that cotton; I had no intimation of any kind 
respecting it until I received the telegram of July 3. 

Q. Was Jacob Wilson then in the employment of the marshal, and about the office.—A. 

I do not know whether Wilson was in the employment of the deputy marshal; I know he 
was about there at that time. 

Q. And Judge Busteed’s body servant.—A. No, I do not know that; Judge Busteed had 
a black body servant. 

Q. Did you never hear of the despatch of the 25th of June having been given to Jacob 
Wilson—A. No, I never did; I supposed, until just now, that that (received July 3) was 
the only despatch. 

Q. The despatch which you showed us is marked, indicating that it is a duplicate; look 
and see.—A. Yes, it is; I never noticed it before. 

Q. The despatch with the endorsement of Judge Cuthbert directed by you is on its face 
marked duplicate.—A. Yes. 

Q. Could any motion to sell the cotton have been made without your consent, wdien you 
w r ere district attorney.—A. I do not know ; but my impression is that the motion was made 
by Judge MGKinstry, as attorney for the marshal. I do not recollect the facts of the case, 
whether I took an interest in it, either for or against the motion. 

Q. Would you not take an interest against the motion when you had the despatch “Stop 
all further proceedings.”—A. This could hardly be said to be a proceeding against the cot¬ 
ton. If the cotton had remained in the custody of the court during the summer vacation— 
which was about to take place—the insurance would have been very expensive. 

Q. Where would have been the difficulty in our taking it out upon a bond and stipula¬ 
tion.—A. That is a matter I know nothing about. 


284 


Q. Supposing the claimants of the cotton had made a motion to take it out upon bond 
as it is proven they did in this case—A. There might have been this difficulty: it was 
claimed to be confederate cotton; and there might have been some marks upon it; I do not 
know. 

Q. Why did not the marshal go down there and examine each bale, and take the descrip¬ 
tion of it.—A. I cannot say. 

By Mr. Churchill : 

Q. You were asked why you did not obey the telegram, “Stop all further proceedings: ’ I 
did not comprehend your answer.—A. The sale merely changed the form of the thing in 
court. 

Q. Does not “Stop all further proceedings” mean take no further steps about it? Why 
did you allow it to be sold.—A. I could not stop the sale. It was a matter entirely beyond 
my control. 

By Mr. Smith: 

Q. Did you present the telegram to the court.—A. Yes, and upon that the proceedings 
were stopped, and I reported the facts. 

Q. Why, then, was the sale allowed to proceed at all until the order was countermanded.— 
A. A month elapsed and upwards, and no instructions in the mean time came from W r ash 
ington. 

Q. Why did you allow proceedings to go on until the order was reversed or counter¬ 
manded.—A. My impression is, because I could not stop them. 

Q. Did you remonstrate when the court ordered the sale.—A. I am not sure. The records 
will show. 

Q. Have you any recollection of speaking to the judge about it.—A. I have no recollec¬ 
tion. 

Q. Did you not hear Jones and Herndon in the court resisting the sale with all their 
might.—A. I do not recollect. 

Q. Did you join them, or either of them, in their efforts to prevent the sale.—A. I do not 
know that I did. 

Q. Do you mean to say that the court ordered the cotton to be sold, and that it was finally 
sold without your consent as district attorney.—A. I do not recollect the fact; I think I 
presented the order that I received from the Attorney General’s office, and I do not know 
whether there was any active opposition, or that I did more than to present the order. 

Q. Do you say that you and the judge differed as to the sale of the cotton.—A. We cer¬ 
tainly did. 

Q. And you know that you opposed the sale.—A. I think I did ; but I declined to act at 
all in these cotton sales after I had been treated in that manner by the government. 

Q. Cannot you remember whether you had a conversation with the judge about it.— 
A. No. 

Q. W T hy, then, do you undertake to say that there was any difference of opinion between 
the judge and you.—A. Because there was a difference of opinion when the first telegram 
arrived. I am speaking about the first telegram, which says “ Stop all further proceedings.” 

Q. You say you were always opposed to the sale of the cotton after you received that tele¬ 
gram; and yet you never said one word to the judge.—A. I exhibited this paper; weeks 
passed, and I said I had received no further instructions from Washington, and I made my 
report. That is the way in which it stood. 

Q. Do you mean to say that the court understood you as being opposed to the sale.—A. 
Yes; I think it must have been understood. 

Q. And yet you have no recollection of saying one word to the judge on the subject.—A. 
My impression is, that if anything occurred, I was asked if I had any further instructions 
from Washington, and I said no. 

Q. The saying that you had no further instructions from Washington is not saying that 
you were opposed to the sale.—A. I did not make any active opposition. The fact was, I 
was disgusted at the course adopted by the government relative to the cotton cases, and had 
made up my mind to do nothing at all respecting them. 

Q. Did you consent to, or were you opposed to the sale.—A. If anything, I was opposing 
it. But it was not an active opposition. 

Q. Did you telegraph to the Attorney General that you could not have his order executed ; 
that the court had ordered the sale in spite of it; or anything of that kind.—A. No. 

Q. Did you give him any information of the course of proceedings in court which pre¬ 
vented you from complying with his order.—A. I had received a letter which I considered 
very insulting, from the Attorney General’s office, and I had no more communication with it 
than was absolutely necessary. 

Washington, D. C., February 5, 1869. 

Lawrence Worrall recalled and examination continued. 

By Mr. Smith : 

Question. In the proceedings which you filed, called the libels against cotton, in the name 
of the United States, did you ever insert or disclose the name of the informer.—Answer. I 
did not. I do not think the practice was to insert it. 


285 


Q. Did you ever consult the Attorney General as to the propriety of seizing cotton from 
the treasury agent who had it already for adjudication.—A. No, sir; but I apprised him of 
my proceeding. 

Q. Did you in every case apprise him of your proceedings.—A. Yes, sir. 

Q. Voluntarily.—A. I think I did. 

Q. In what cases.—A. I think that I did so in all the cases. 

Q. Did you do it by letter.—A. I think so ; but am not positive. My impression is that 
I did it in all the cases. 

Q. Why did you not put in the name of the informer in the libel.—A. Because it was not 
the practice. 

Q. Did you understand it not to be the practice in qui tarn suits to insert the name of the 
informer.—A. Yes, sir. 

Q. Were there not, in fact, when you filed those proceedings, seven secret informers on 
the jury that was to try those cases.—A. No, sir; the judge alone tried this class of cases. 

Q. Do you not know that there were several of the very parties who were interested, on 
the jury at that term of the court.—A. No, sir; cases of this kind were not tried by juries. 

By Mr. Eldridge : 

Q. Do you know of any of the informers being on the jury.—A. I do not. I had nothing 
at all to do with the formation of juries at that time. The judge, however, held that 
that class of cases was not to be tried by a jury. 

By Mr. Smith : 

Q. How did you know that until the question was made and decided.—A. The question 
had been raised and decided before I filed those libels. 

Q. In what cases.—A. In all the cases at Montgomery that were brought before the court. 

Q. Did you ever disclose to anybody who were the secret informers.—A. I think—in fact, 
I am sure—that Mr. Andrews knew it. 

Q. If the money had been recovered, it would have been divided, half to the United 
States and half to the informer.—A. I think not; I think that only one-fourth would have 
gone to the informer. 

Q. A large amount of money would have gone to the informer.—A. Certainly. 

Q. If you had allowed the Treasury Department to settle its own business, and decide in 
favor of the United States, the United States would have got the whole proceeds.—A. No, 
sir; the United States would have got none of that cotton. Its release had, I think, been 
determined upon. 

Q. If the Treasury Department had decided to hold the cotton, would not the United 
States have got the proceeds.—A. I was convinced that the government would lose all that 
cotton, and therefore I seized it. 

Q. What convinced you of that.—A. Because I had no confidence in the integrity of the 
treasury officials and employes. 

Q. Did not the treasury agent down there settle his accounts, and did not the Treasury 
Department pass upon them all.—A. I do not know ; he did not while I was in office. 

Q. Did you ever report your want of confidence in his integrity to the Attorney General, 
and ask permission to take the property out of his hands.—A. I reported to the Attorney 
General that I had made an application to the district court for a warrant to seize the books 
and property of Mr. James M. Tomeny, supervising special agent of the Treasury Depart¬ 
ment in the ninth agency; that the district judge had granted that application, and that the 
books and papers were in the custody of the court. 

Q. Were you not promptly ordered to restore them, and to make a motion to the court to 
that effect.—A. I was directed by the Secretary of the Treasury to restore Mr. Tomeny’s 
books and papers. 

Q. Were you not ordered to make a motion in court for their restoration immediately, and 
to put them in the hands of the collector of the district.—A. I sent word back to the 
Attorney General that the grand jury was in session, and that the books and papers were 
before the grand jury. 

Q. (Question repeated.) 

A. The Attorney General sent me directions to apply to the court for an order restoring 
these books and papers to Mr. Tomeny. 

Q. Did you make that motion.—A. I did. 

Q. Did you press it.—A. No, sir ; I did not press it. I called the attention of the court 
to the fact that I had received instructions of that character. 

Q. But you did not put yourself to any trouble to carry out the orders of the government.— 
A. I could not do so consistently. Mr. Tomeny had been indicted, and to have given those 
books and papers to him would have been to surrender to him all the evidence of his guilt. 

Q. Were you afterwards ordered by the government to dismiss these indictments.—A. I 
was, without their ever having looked at them. I was ordered by the President of the 
United States to obey the instructions of the Attorney General, unless I deemed them incom¬ 
patible with the public interests. I did deem them incompatible with the public interests. 
Then he asked me to report the facts. I reported the facts, and heard nothing more about 
the matter. 


286 


Q. Did you ever surrender those books and papers.—A. I did. 

Q. The whole of them.—A. I surrendered every book ; but there was one paper which I 
did not surrender. I refused, however, to surrender them to Mr. Tomeny; but I surren¬ 
dered them to his deputy, Mr. Youngs. I reserved one paper. 

Q. These were the books and papers of the Treasury Department, were they not.—A. 
They were the books and papers of the ninth agency, a distinct branch of the Treasury 
Department. 

By Judge Busteed : 

Q. State in this connection who were the counsel for Mr. Tomeny.—A. Robert A. Smith, 
I believe, and Mr. Percy Walker. 


By Mr. Smith : 

Q. To what matter do you refer.—A. To the matter of this prosecution against Mr. 
Tomeny. 

Q. Listen to this paper: 


“The United States 
‘ ‘ vs. 

“662 Bales of Cotton. 


“ In the United States district court for the southern district of 

Alabama. 


“ To the marshal of the United States for the southern district of Alabama, and to his deputies, 

and to either or any of them : 

“You are hereby required to seize forthwith, and take into your custody, all records, books, 
and papers within your district, pertaining or in any wise relating to cotton belonging or 
said to belong at any time to the so-called Confederate States government: also, all records, 
books, and papers, wherever the same may be found in said district, relating to the seizure, 
detention, release, purchase, sale, transfer, shipment, or other disposition of any cotton 
whatever in the possession or under the control of any of the persons or firms hereinafter 
named, their predecessors in office, or their successors or representatives, or the subordinates 
of either, such records, books, and papers being, as I am advised by the United States dis¬ 
trict attorney for this district, material and necessary upon the part of the United States in 
this and certain other actions now pending and undetermined in this court; and that such 
records, books, and papers are essential to protect and sustain the interests of the United 
States in said actions, and in other prosecutions to be instituted for and upon the behalf 
of the United States. 

“ You will seize and detain in your custody such of said books and papers as are in the 
possession or under the control of J. M. Tomeny, S. C. Ogden & Co., J. J. Dillon, A. A. Win¬ 
ston, C. J. and R. G. McMahon, C. M. Roberts, Warring & Windham, Watson & Co., 
Pepper, Berry & Co., and if any of said records, books, and papers should be found in the 
possession of any other person or persons, you will seize and safely keep the same in your 
custody until the further order of the court. And for this, this will be your sufficient warrant. 

“Witness my hand, at the city of Mobile, this 21st day of April, 1866. 

“RICHARD BUSTEED, 

“ U. S. District Judge for Alabama.'" 


Q. Did you obtain that order.—A. I obtained that order. 

Q. Did you ever before hear of such an order of seizure. Where did you get your idea of 
it.—A. General Woods had called my attention to the frauds and rascalities in cotton tran¬ 
sactions in Mobile. The case of T. C. A. Dexter had been turned over to me. All the books 
and papers pertaining to that case were in the possession of Mr. Tomeny. I could not get 
at them, and could not make any progress in that cotton case. Just after I was appointed, 
I understood that the treasury officials were making way with their books and papers. 
Affidavits were made before me stating that the books and papers were being packed up. 
After consultation with General Woods, I drew that order and presented it to the judge for 
his signature. He asked me what was in it. I told him, and he signed it, and 1 gave it to 
the marshal to execute. 

Q. Where did you ever find in any book or authority any precedent for such an order of 
seizure.—A. I did not look lor any. There was an outrage which demanded my immediate 
attention. 

Q. The telegraph was working from Mobile to Washington, was it not.—A. It generally 
was, though there were often interruptions of three and four days at a time; besides, as I 
said before, 1 had no confidence in the administration of affairs pertaining to cotton transac¬ 
tions at Washington. 

Q. You had no confidence in Mr. McCulloch.—A. I did not say that. 

By Mr. Eldridge : 

Q. What do you mean when you say that you had no confidence in the administration of 
affairs at Washington.—A. I had no confidence in whoever it was who had control of those 
cotton matters. I do not know whether it was the Assistant Attorney General or the Attorney 
General himself. 


287 


By Mr. Smith : 

Q. If you thought it was proper to proceed against the views and purposes and decision ot 
the government, and take property away from the Treasury Department which it had, what 
hindered you from reporting the facts to the Secretary of the Treasury.—A. Before I could 
have got a telegram from Washington, these books and papers would have been off. They 
were all packed up in boxes as it was. I applied to General Woods for a guard, because I 
considered it as much as any man’s life was worth to have them in his possession. They 
remained under his guard until they were turned over to the deputy collector. 

Q. Mr. Tomeny kept an open office and had these books in his possession for weeks and 
months; is that not so.—A. I don’t know. I was notin Mr. Tomeny’s office. I had no 
relations with him. The paper which I retained, and which, I think, is now in Mobile, 
showed these facts: that of a lot of (I think) 662 bales of cotton, one half of it was sent to 
one warehouse and one-half of it was sent to another. The half that was sent to the first 
warehouse was divided so as to make the full number of bales, and that cotton they pro¬ 
posed to ship on the government account. It also showed this fact, that while Mr. Tomeny 
paid but $4 or $5 a bale for the the transportation of cotton, he had charged $8 or $9 a bale. 

Q. Who made that paper.—A. It was made in the Treasury Department, or in Mr. 
Tomeny's department, I don’t know which. 

Q. All these things were brought to the consideration of the Secretary of the Treasury, and 
he decided that the books and papers should be returned.—A. No; I don’t know iliat the 
Secretary of the Treasury ever knew of it. 

Q. Do you know whether, after Mr. Tomeny was indicted and went to New York, he paid 
Judge Busteed $3,000, and Judge Busteed dismissed the indictment.—A. No, sir; I never 
heard of that. 

Q. Do you know whether he paid Mr. Rufus Andrews that amount, and that thereupon 
the cases were all dismissed.—A. No, sir. 

Q. Or any other sum—A. No, sir; I do not know that he ever paid Mr. Andrews any¬ 
thing. Mr. Andrews, so far as I know, was not his counsel or engaged for him in any way. 
While these papers were in my possession no one had access to them except the grand jury, 
composed of the best citizens of Mobile, and myself, and the grand jury found some J2 or 15 
indictments, and said they would find as many more as I would ask for. 

By Mr. Eldridge : 

Q. What became of those indictments.—A. I presume they are down there in the office. 

Q. Have they ever been nolle prossed. —A. I believe Mr. Martin was directed by the 
Attorney General to nolle pros, all of them. I think I heard him make that statement in court. 

By Mr. Semple : 

Q Who was the Attorney General.—A. Mr. Speed. I stated this fact, too, that the taking 
off these books and papers created considerable commotion. Governor Flanders and Mr. 
Fogg called upon me to investigate my action ; they went and saw Tomeny, and after inves¬ 
tigation they came to me and told me that I was perfectly justified ; that I could not have 
acted otherwise than I did. Both Governor Flanders and Mr. Fogg made this statement. 
Subsequently General Granger came down. He showed me a letter either from the Presi¬ 
dent or Secretary of the Treasury telling him to proceed to Mobile and adjust the quarrel 
between the district attorney and the treasury agent. I told him I had no quarrel ; that he 
might examine what I had done, and that I would do whatever he said. He spent two dajs 
in examining Tomeny’s books and papers. He told me I could not have acted otherwise 
than I had done ; that he approved of all, and he asked me to write a report to send to Wash¬ 
ington. I wrote a report. Some days after I received a letter from him stating that he had 
not received my report, and asking me to send it on. I wrote another report and sent it for¬ 
ward. I heard nothing more from it until in July, when I was in New York. General 
Granger stepped up to me and said, “I presented that paper in Washington.” “ Well,” said 
I, “ are they going to look into this thing ?” Said he, “ My opinion is that they do not want 
anything done about it.” 

Q. Who was this gentleman.—A. It was Major General Gordon Granger. As to my 
statement relative to costs, I recollect it was customary in making up the bills of costs to have 
those which were headed “ clerk’s costs ” include the proctor’s fee of $20 and $4 for the 
marshal. I have no doubt that these items were included in this $1,200 bill of costs. There 
were various lawyers in those cases, and every lawyer claimed a proctor’s fee, and it was 
allowed. On reflection over night, I am satisfied that there is something wrong about these 
figures in this pamphlet, because if it had been correct I am satisfied that both you and Mr. 
Hamilton would have objected at the time. 

Q. Did I not object and complain of your charges.—A. You never objected ; you had no 
quarrel with me. 

Q. “For the proctor’s fees, 32 cases, each $20, $640.” Now what have you got to say 
about the proctor’s fees being included in your fees—A. I believe this statement is false. I 
have no doubt of it, because I think if it had been a true statement no man who got it up 
would have hesitated to put his name to it. I believe it is false ; I believe it is an entire 
misrepresentation of the facts. I have seen that pamphlet but once before yesterday, and 


288 


then it was in Lathers’s possession. I had no idea that I should be examined about these 
things. No question was ever made about them with me, only as to the marshal’s fees. 
There is not a gentleman in Mobile that said a word to me about these costs. 

Q. You know you were charged with confederating with the judge to make money for him, 
did you not.—A. I understood that; but, as I said before, I had no idea that it would ever 
amount to an investigation. I never saw a copy of that pamphlet but once before yesterday. 

By Mr. Churchill: 

Q. How long were you clerk.—A. From November, 18G5, until December, 1867. 

Q. What number of causes were tried in the court during that time.—A. We had two courts, 
the United States district court and the circuit court. I cannot give you an idea; there 
were not very many. The courts were held by the judge at Huntsville, and at Montgomery. 

Q. Were you clerk of the circuit court in all the districts.—A. I was clerk of the circuit 
court only in the southern district, and in the district court for that district. 

Q. What number of judgments or decrees were entered during those two years after trial, 
and what number were there of cases where there was no defence made.—A. Two hundred 
or 250 would probably cover the whole number. 

Q. In both courts.—A. In both courts. 

Q. In what proportion of these cases was there a trial, and what proportion were unde¬ 
fended.—A. I suppose, perhaps, 50 or 75, where there was a trial; there was quite a large 
number that went by default where there was no defence interposed, and where the parties 
have since gone into partnership bankruptcy. I think 300 would cover all the cases in 
both courts; I can only approximate the number. 

By Mr. Eldridge : 

Q. What would your fees average in cases where there was a trial; I mean the ordinary 
fees, not including your percentage.—A. I think they would average about $10 or $12; 
then there was very little difference in the fees, whether the cases were tried or not tried ; but as 
I said before I did not pay any attention to that part of the business. 

Q. Would not the clerk’s fees average a good deal more than that.—A. Very rarely, unless 
there were depositions or something of that kind. We had so much for the writ; one dollar 
I think, and 20 cents for the seal; and if the case was continued at the term, I think it was 
10 cents ; and if a judgment, it would depend upon the length of the judgment—so much a 
folio; 20 cents a folio for making the full entry. 

Q. So much for swearing witnesses.—A. I think there were charges allowed, but not 
reckoned; because the judge swore all the witnesses. I was away usually, engaged in the 
United States commissioner’s office, and Judge Cuthbert merely made a report to me of the 
names. 

Q. You got a fee for calling and swearing the jury.—A. No ; there was never any charge 
made of that, that I know of. 

By Mr. Churchill : 

Q. In what proportion of these cases were you appointed examiner.—A. Only in a few ; in 
four or five cases in admiralty, I think. 

Q. What were your fees in the other cases, aside from the Natchez cases, where your fees 
amounted to $320 as examiner.—A. They could not have amounted to much, because there 
were not many witnesses; in this Natchez case I think there were over 100 witnesses: 
I was examining it night and day for a long time. 

Q. But your uniform charge was $10 in each court.—A. Yes ; but by consent of counsel, 
the depositions which were taken in some cases were used in others; there was no objection 
made to that at all. 

Q. What was the largest sum you received in any other case as examiner.—A. I do not 
recollect any large sum, or anything over $10, or $15, or $25 in any case as commissioner; 
that is my present recollection. 

By Mr. Eldridge : 

Q. Did you and the judge live together in Mobile in the same house.—A. Yes. 

Q. Did James Q. Smith also live withyou.—A. O, no; he belonged up in Montgomery ; 
he was district attorney for the middle aud the northern districts. 

Q. Did Andrews live there in the same house with you and the judge.—A. Yes. 

Q. What were the terms upon which you lived together.—A. We never made any terms. 

Q. Did you and Andrews and the judge furnish alike for the house, or how.—A. I did not 
furnish anything; occasionally I took the ladies to drive, or something of that kind, but it 
was understood that I went there merely to accommodate the judge. I had recently lost a 
brother, and I was anxious to be absent from home for a season, because of the melancholly 
circumstances attending his death, and the judge asked me to go with him to Alabama; I at 
first declined; I finally went, and soon after I arrived I was taken very sick and nearly died. 
I remained there with the family while the judge was away at Huntsville, in January and 
February; there were no terms upon which we lived together; I was more of a visitor than 
anything else. 



289 


Q. Did you furnish anything to the family to live on.—A. No; I may have presented 
them a case or two of wine; but it was as much for myself as for them. 

Q. Do you know whether Andrews furnished a portion ot the means upon which the 
family lived.—A. No; I did not interest myself at all in that matter. 

Q. Did you tell Judge Cuthbert that you and Andrews had to furnish the means for the 
support of the judge’s family.—A. I certainly did not; I was amazed at Judge Cuthbert’s 
making that statement, because it was untrue; I certainly could not have made it, and I 
had no object in making a statement of that kind. 

Q. Did you tell Senator Spencer that thejudge was poor, and that you had to help him to 
live.—A. I did not, because I never considered thejudge a poor man; I knew that he sold 
his house in Madison avenue for about $40,000; he owns a fine place out at Jamaica ; I do 
not consider his circumstances poor, by any means. 

Q. Did you tell General Spencer that you had to divide your business with the judge.— 
A. I never told General Spencer or anybody else so. 

Q. Did you tell General Spencer that he ought to make a present to thejudge of $1,000.— 
A. I did not. 

Q. Did you have any conversation with him about giving the judge $1,000.—A. I had a 
conversation with General Spencer at Huntsville before I was qualified as register; General 
Spencer called on me and congratulated me about my appointment from Chief Justice 
Chase ; he said it was a very nice thing; he said he had a very good district, but he thought 
mine was better than any; that it was the best in the State, and he proposed that we should 
make thejudge a present of $1,000. 

Q. Did you make thejudge a present.—A. No, sir. 

Q. Did you advise him that it was right.—A. I gave no advice regarding it; I heard his 
suggestion and seemingly assented to it. 

Q. Did you not tell him that you would do the same thing, and subsequently that you 
had done the same thing.—A. I did not; I never told him I had done the same thing. 

Q. Do you know Governor Smith.—A. Only by sight. 

Q. Do you know John O. D. Smith.—A. I have met him twice. 

Q. Did you ever have any conversation with him about making thejudge a present.—A. 
He called on me at Mobile and presented a draft drawn payable to his own order, on some 
bank at New Orleans for $150 or $160, and asked me if 1 would not go with him to the bank 
and get the money; I told him if he would endorse it I would send it and save the necessity 
of going up and down stairs ; he declined to endorse it, and said if I could not oblige him in 
that respect and would tell him where the bank was he would go himself; I remarked to 
him that the draft was drawn payable to his order, and that he would have to endorse it ; 
“O, no,” said he, ‘‘1 won’t;” his ignorance disgusted me ; I went to the bank with him 
and I never saw him after that but once or twice. 

Q. Did you say anything to him about making a present to thejudge.—A. Never. 

Q. Did he draw an order upon you for fees.—A. No. 

Q. Do you know of his drawing an order upon Blake—A. Mr. Blake told me he had 

drawn some paper ; I do not know whether it was an order or what it was ; it was last July. 

* 

By Mr. Semple : 

Q. You say you did not agree to join the contribution for Judge Busteed when it was 
proposed by General Spencer.—A. I certainly did not agree, although I said nothing of dis¬ 
sent from it; I suppose he might have drawn the inference that I agreed to it. 

Q. How did you intimate that you did not dissent from it.—A. I heard what he had to say 
and I intimated that I did not think my district would amount to much; when I got down 
there I found only 10 or 15 cases. 

Q. How did you intimate that you would not dissent from it. What did you say to Gen¬ 
eral Spencer.—A. I do not recollect what occurred further than I have stated. 

Q. You have stated that you intimated that you would not dissent from it; how, by 
language or by saying nothing.—A. By saying nothing. 

Q. That was the only way in which you intimated you would not dissent from it.—A. 
Yes ; I think so. 

Q. After you separated from them at Huntsville did you hear anything more of the pro¬ 
posal to make the contribution to Judge Busteed.—A. No, sir. 

Q. You heard nothing from General Burke or Mr. Day upon that subject.—A. No. 

Q. Did you receive anything from them for Judge Busteed.—A. No. 

Q. Did you know of Judge Busteed’s having received anything from them.—A. I heard ; 
I think Judge Busteed told me himself that he had received money from Day and Burke. 

Q. Did you have any written correspondence with Day and Burke upon that subject, or 
with General Spencer.—A. I think not; none whatever. 

Q. Did you act as register in bankruptcy in the Montgomery congressional district.—A. 
Yes. 

Q. Did you receive any letter from Storer ordering you to pay into the clerk’s office all 
the fees which were deposited by petitioners of bankruptcy with you.—A. No, sir. 

Q. Other registers received such a letter did they not.—A. I do not know. 

Q. Have you any information about it.—A. Only such as Storer told me here; I have no 
knowledge about it. 

19 B 



290 


Q. Did you understand it from either of these other registers.—A. No, sir. 

Q. Do you know whether General Burke received such an order from Storer.—A. I do 
not think Burke was in Storer’s district; I do not think that he had any cases in that dis¬ 
trict. 

Q. No part of Bingham’s district was in the middle district.—A. I think not. 

Q. Did you have any difficulty in getting the cases in your district—in having them 
referred to you at any time.—A. No. 

Q. Were cases referred to you from other districts.—A. I think not; there may have been ; 
there were none that I recollect of. 

Q. Were there not some referred to you from General Spencer’s district at one time.—A. 
There were no cases referred to me that properly belonged to Spencer’s district, as I recollect; 
but I wish to explain : General Spencer and I had a very serious dispute about the bound¬ 
aries of our districts. He claimed that the boundaries of the district were changed by Gov¬ 
ernor Parsons’s convention in 1865. I claimed that that convention had no right to change 
these congressional districts, and if it had changed them as he claimed, my business would 
have amounted to but very little, because it would have taken Marengo and Choctaw coun¬ 
ties away from me and given them to General Spencer, and when I insisted upon retaining 
them General Spencer felt very sore. 

Q. Were there not orders made referring some 50 or 60 cases to General Spencer, and 
afterwards referring the same cases to you.—A. Not to my knowledge; the orders were that 
the register of each congressional district should have the cases that arose in his district. 

Q. Were not some cases that arose in J. O. D. Smith’s district referred to you.—A. I think 
there were. 

Q. By whose order.—A. I think it was done by the man who succeeded Storer, Mr. Cloud. 

Q. Do you not know that J. O. D. Smith had a great deal of trouble in getting the cases 
that properly belonged to him.—A. I know this: that he made a great deal of complaint. 

Q. Do you know that he had difficulty in getting his cases.—A. I know there was diffi¬ 
culty between Storer and J. 0. D. Smith. 

Q. Do you know that General Spencer had difficulty in getting his cases referred to him 
which properly belonged to him.—A. I do not know. I know he had difficulty about these 
cases in the disputed counties in Mobile. 

Q. Did Burke or Storer, either of them, accuse you of having cases referred to you greedily 
and to which you were not entitled.—A. No, sir; not at all. 

Q. Did you make entries yourself in the clerk’s office referring the cases to you. —A. I 
never made an entry in the clerk’s office in the middle district. 

Q. Did you make an entry in Blake’s office.—A. I never made an entry in Blake’s office. 

Q. Did you have any understanding with Blake or with the judge, that J. O. D. Smith 
could not have or should not have the cases that arose in his district.—A. No. 

Q. Did you have any conversation with the judge about it.—A. I never had any conver¬ 
sation with him upon the subject. There was some difficulty between J. O. D. Smith and 
the clerk there, arising from this fact: J. O. D. Smith collected the $50 in cases and sent the 
petitions to the clerk without sending anything to secure the clerk his fees. Storer called 
my attention to that fact. The other registers generally collected the $20, and in a good 
many cases they collected the entire amount of $70, but they had none of the clerk’s fees in 
J. O. D. Smith’s cases ; I called his attention to that section of the bankrupt act which 
provides that no officer is required to perform any duties under that act unless his fees shall 
be secured or paid. 

Q. That was before any order had been made regarding the payment of the $20 upon filing 
the petition.—A. No; I think that order was made soon after I was qualified. I saw by the 
bankrupt register that such an order had been made in Maine and in other States, and I 
applied to the judge for such an order. 

Q. The difficulty with Smith was because he did not deposit the $50 when the petitions 
were referred.—A. I did not so understand it. 

Q. Did you understand from Storer, at the time you had this conversation with him, that 
he had sent such a letter about that time to Smith saying that he would not have these cases 
referred to him unless he deposited $50.—A. I understood from him that he was doing all 
the work and Smith was getting all the money. I did not know that he had given Smith 
such a notice. 

Q. What kind of notice did you understand him as having given Smith.—A. I understood 
from him that Smith did not collect the fees of the clerk; that he would not interest himself 
at all about it; that he said he had collected his own fees, and the other officers would have 
to collect their fees. 

Q. Do you know whether the judge made any order about these fees.—A. Never; so far 
as I know I have never seen any such order. 

Q. Did you give any directions.—A. No. 

Q. Do you know of the judge ever giving them to Blake or Storer.—A. No. 

Q. You never deposited the $50 with the clerk.—A. No ; but the clerk received it in a 
great many cases. 

Q. And you never had any difficulty in getting cases referred to you.—A. No; but the 
clerk had as much of my fees as I had of his. 


291 


Q. Has he them yet.—A. Yes; lie never paid them over, nor have I ever asked him. 

Q. In quite a number of cases the $20 was paid to you and you supposed you would have 
enough in your hands to make you whole.—A. 0, no; he certainly had in his hands a 
good deal more of my fees than I had of his. 

By Mr. Smith : 

Q. Look at the check which I hand you and say whether you ever saw it before._A. I 

have heard a great deal about it. I do not know whether I ever saw it. I do not think I 
ever saw it before. 

The check w r as read and received in evidence, as follows: 

“ Office of J. H. Fitts & Co , 

“ Tuskaloosa, Alabama, March 31, 1868. 

“$ 1 , 000 . 

“At sight pay General George E. Spencer or order $1,000, and charge same to your 
obedient servants, 

“J.H. FITTS & CO. 

“To Messrs. Foster & Gardner, 

“ No. 44 North Commerce Street, Mobile, Alabama. 

“No. 521. Endorsed: GEORGE E. SPENCER. 

“W.S. GREEN, Cr., 

“Per TOM GALE, Run” 

Q. Were you present at Stanwood’s plantation, in Lowndes county, when General Spen¬ 
cer presented this check to Judge Busteed, somewhere between the 31 st of March and the 
15th of April, 1868.—A. No ; I could not have been present. I was in Mobile most of that 
time. 

Q. From the 31 st of March to the 15th of April were you in Mobile.—A. I was either at 
Mobile or Selma, or at some place upon the Alabama river. 

Q. Are you certain that you was not in Montgomery between the 31st of March and the 
15th of April, 1868.—A. I think so. I am quite certain that I was not at Stanwood’s. 

Q. Do you remember anything of a little speech made by General Spencer to Judge 
Busteed upon the occasion of his making a present to him.—A. I do not recollect it, and I 
certainly could not have been present, because if I had heard such a speech I should have 
recollected it. 

Q. Did you ever write a letter to General Spencer in relation to J. O. D. Smith’s failure to 
make a present to Judge Busteed.—A. I do not think I ever did. 

Q. Are you certain, and do you swear that you never wrote such a letter.—A. That is my 
impression ; I do not see why I should. 

Q. Do you remember Robert T. Smith coming with General Spencer to your room in 
Montgomery some time about the 1st of J line, 1868, and General Spencer saying to you, “ Smith 
has agreed to it; it is all right.”—A. No, sir. 

Q. Do you swear that that never happened.—A. I swear I do not recollect it. I do not 
think it happened. 

Q. Do you remember replying, “I am glad of it; the judge is in need; his salary is 
scarcely more than enough to pay his travelling expenses and hotel bills;” or words to that 
effect.—A. No. 

Q. You never made any such statement as that to General Spencer.—A. I think I did not. 

Q. Do you know anything of the negotiations between General Spencer and J. O. D. 
Smith in relation to his obtaining the reference of his cases to him by making a present to 
Judge Busteed.—A. I never heard that there was any negotiation. I know nothing about it. 

Q. And you never heard, except from the judge, of General Burke or Mr. Day’s having 
made a present to the judge.—A. Never, except from the judge. 

Q. How much did the judge tell you it was.—A. I do not recollect whether it was $500 
or $1,000. It is my recollection that the entire amount was either $500 or $1,000. 

Q. What did the judge tell you it was for.—A. He read me the letter he had written 
them. He expressed his thanks, and everything of that kind. 

Q. Did he not tell you what they had given it for.—A. No; there was not a word said 
about the object for which it was given. 

Q. Did he read you the letter they had written to him.—A. I think so. 

Q. What did they say it was for.—A. They said it was a present as a token of their re¬ 
gard for him, or something of that kind. I do not recollect the phraseology of the letter. 
I did not pay particular attention to it. 

Q. His reply was thanking them for having sent it to him.—A. Yes. 

Q. How was it sent. —A. I do not know. I think it must have been sent in the letter. 

Q. Did you include in your statement the fees received by you as master in chancery.— 
A. Yes. 

Q. In the $7,000.—A. Yes, about $7,000. 

Q. How many cases of libel or information against persons who had been engaged in the 
rebellion were disposed of at Mobile during your term as clerk or district attorney.—A. I 
never prosecuted anybody on account of their connection with the confederacy. It was 


292 


suggested to me that I institute libel suits against Admiral Semmes, Judge Campbell, and a 
large number of others who resided in Mobile, but I uniformly refused to institute a single 
libel against any of them. It was only against this cotton, that was being made way with 
by the treasury officials, that I brought libel suits. 

Q. In how many of these cases.—A. In only five or six. 

Q. Did you send any witnesses before the grand jury to testify in relation to H. A. Dexter.— 
A. I did ; I sent some GO witnesses before the grand jury ; I sent every man that I suspected 
of knowing anything about that matter; I tried very hard to get an indictment against him. 

Q. Did you send any of these papers before the grand jury.—A. Every paper I could get 
from Tommey. Those gentlemen sat there day and night for a month. Robert S. Bunker 
was the foreman of the grand jury. At the conclusion of the proceedings the grand jury 
presented me with a very complimentary vote of thanks. They presented no indictment 
against Dexter; they thought Dexter a fool, but not a knave. There was a grand scat¬ 
tering of witnesses for Cuba and other places when I got into the office of district attorney. 
But all the men, all that were within the reach of a subpoena, I brought, many of them way 
up from the interior, to testify as to facts of the case. 

Q. Do you remember Judge Cuthbert saying, when he applied for an increase of salary, 
that the fees of the office for the previous five months had amounted to $6,000.—A. No. 

Q. Did he make any application to you for an increase of his salary.—A. No; when I 
offered first to allow him to retain $1,000 of the fees he had collected, he wanted more, and 
then I made it $1,800; I do not recollect that we had any discussion about it afterwards. 

Q. Did he make any application for an increase of salary after that.—A. I do not remem¬ 
ber any such application. 

Q. He says that at one time you remarked that you were not making as much as you sup¬ 
posed you would—that you had to divide with Judge Busteed —A. Judge Cuthbert, if he 
said that, was certainly very much mistaken. 

By Mr. Churchill : 

Q. How long were you with Judge Busteed’s family in Mobile.—A. From November to 
April, and about that time his family left for the north. 

Q. After his family left, where did you live.—A. I remained there some time. 

Q. Did you live with the judge.—A. No ; I think the judge went north—he went to Mont¬ 
gomery, at all events. 

Q. Did you live with his family after that.—A. He had no family in Mobile; the house 
we occupied was returned to the parties of whom it had been rented. 

Q. Did you and the judge live together after that.—A. We frequently did. 

Q. In the house.—A. Not in the house—in the custom-house. 

Q. Did you live in common, then.—A. We had a bed there ; we got our meals, of course, 
outside; I think the judge was there very little after that—perhaps a week or 10 days, not 
more. I was there all the time ; then we got our meals at a restaurant on Government street; 
sometimes he would pay for them and sometimes I would. 

Q. Did you take your meals together usually.—A. O. yes; sometimes we were invited 
out, but there was no arrangement about it. 

Q. The judge was occupying a house at the time you was in his family.—A. I presume 
he was renting the house. 

Q. Did you never, in any way, bear the expenses of the family beyond the extent of a 
few cases of wine.—A. No, not beyond that extent; I had a friend from New York, a law¬ 
yer, who spent some time with me at Judge Busteed’s ; I considered myself under obliga¬ 
tions to the household; I made them a present of some wine, as I have said, and I took the 
ladies out driving and to the theatre. Such expenses were pretty high ; I frequently paid 
$25 for a hack for an afternoon, besides the toll, $1. Expenses of enjoyment were pretty 
enormous. 

By Mr. Smith : 

Q. Did you say that the hack-hire (there wasjj$25 for one afternoon.—A. That is what 
they charged me. 

By Mr. Churchill: 

Q. Was that the only return ever made by you, in any form, for your being in the family 
during the time mentioned.—A. It was; I considered I was conferring an obligation upon 
the judge by going down, because I had associations in New York and fine prospects there, 
and I did not care to relinquish them. 

Q. You were a partner of Judge Busteed’s before going to Mobile.—A. Yes; and I car¬ 
ried on the practice of law alone from the time he was commissioned in 1863 as brigadier 
general; he then went to \ irgiuia, and I remained in the practice of law. 

Q. The firm continuing.—A. He did not practice ; his name was there. 

Q. Did he continue to be a partner in the firm.—A. No; I carried on the business, but 
the title of the firm was not changed until he received his commission as judge from Mr. 
Lincoln, when I ceased to use his name altogether. 

Q. Where was this $25,000, which you say you received as register’s fees, deposited by 
you.—A. Some of it in the city of New York. 

4 


293 


Q. Where was the original deposit by you.—A. It came in in different sums ; I had no 
very great confidence in southern banks; I believed that they had all been speculating in 
cotton; I did not know how they stood; so I removed it to New York as it was received 
from time to time. 

r Q. What amount did you send to New York, and did you deposit it in the bank in New 
York.—A. I said I sent it to New York; I sent it to my father—my father is considered to 
be a man of responsibility. 

Q. What was the amount you sent to him.—A. I think it was about $15,000 or $16,000, 
somewhere along there. 

Q. What became of the other $10,000 which you received.—A. A large portion I have 
spent; some of it is in the Bank of Mobile. 

Q. What instructions did you give your father in regard to this money.—A. To keep it, 
subject to my draught. 

Q. Where.—A. In my father’s possession. 

Q. Did he make any deposit of it or invest it.—A. I presume he uses it; he pays me seven 
per cent, interest upon it, and holds it subject to my call whenever I choose to make it. 

Q. Has he ever given you any statement of the amount, or any acknowledgment of the 
money.—A. No. 

Q. Was it ever deposited to the credit of any person, so far as you know.—A. It never 
was. 

Q. Has he ever advanced any money, so far as you ever heard of, within the last three 
years, to Judge Busteed.—A. I think not. 

Q. Did he ever part with any money to Judge Busteed within the last two or three years, 
so far as you have any information.—A. No. 

Q. Have you parted with any money to Judge Busteed within the last two or three years.— 
A. No, except in these small matters which I have mentioned. 

Q. Of course no money passed between you and the judge, then.—A. No. 

By Mr. Smith : 

Q. Did you say that the Southern Bank of Alabama was speculating in cotton.—A. I did 
not say anything about the Southern Bank of Alabama. I said I understood the southern 
banks were engaged in speculating. I know that the First National Bank of Selma, which 
was selected by government as a national depository, and which was supposed to be 
good, made a very disastrous failure, and I have heard that the First National Bank at 
Mobile was in a bad condition, and that that bank has the papei—a large amount—of a man 
who is in a very precarious condition financially. 

Q. Do you not know that the Bank of Mobile and the Southern Bank of Alabama are 
sound, well conducted banks.—A. I know they are, but still I know that, fortunes through¬ 
out the south are very much shattered, and that there are many men connected with these 
banking institutions who are not very responsible. 

By Mr. Churchill : 

Q. Has there been any intimation, in any form, between you and Judge Busteed, that at 
some time there would be or might be some money passed from you to him growing out of 
your business in Mobile or in Alabama. —A. No ; I never made any intimation or suggestion 
of that kind. 

Q. Has there been any intimation or suggestion in any form from him that it was expected, 
or would be acceptable.—A. No, sir. 

Q. Is there any understanding of any kind whatever between you and the judge that he 
is to have any portion of the fees.—A. No. 

Q. Do you know of the judge receiving anything while he was in Alabama, except these 
matters you have already mentioned, which it was not legitimate for him to receive as 
judge.—A. I do not, sir. 

Q. Do you know of his having any interest with Andrews in the fees which Andrews 
got.—A. No. 

Q. Have you never heard anything said upon that subject between Andrews aud the 
judge.—A. I have never heard any conversation between them about it. 

Q. Has there been anything said between you and the judge upon that subject.—A. No ; 
I have never had any conversation with him upon that subject. 

Q. Has there anything been said between you and Blake upon that subject.—A. No. 

Q. Has there been any understanding of any kind between you and any person that the 
judge is to have anything of what either Andrews, yourself, or any other person has earned 
there.—A. No, there has not. 

Q. Do you know of the judge receiving any other presents than those which you have 
mentioned.—A. I know of his having received a case of liquor, or something of that kind ; 
I do not know of anything more. 

Q. Do you know of his having received any presents of money, check, drafts, or notes, or 
any portion of the fees in any case.—A. No, sir. 

By Mr. Semple : 

Q. Do you know of Judge Busteed ever having received a present of $500 from a man by 
the name of Miller, who is at present a judge of probate in Tuskaloosa, and who was 
assignee in bankruptcy up there.—A. I have never heard of it before. 


294 

Q. Do you know of tlie judge having transferred any of the funds in the registry of the 
court from Mobile to New York.—A. No. 

Q. Were there any drafts drawn by the judge from this fund while you were clerk, upon 
any ot the funds that might have been in the registry of the court.—A. Of course all the 
checks were drawn by the judge and countersigned by me. 

Q. There were checks drawn upon that fund and countersigned by you.—A. Yes. 

Q. To whom were they made payable.—A. To the salvors in these salvage cases, and to 
the parties who were entitled to allowances, whoever they might be. 

Q. Did you make the deposits in the name of the registry of the court.—A. Invariably. 

Q. At what bank.—A. At the Bank of Mobile. 

Q. Is any of the money still deposited there.—A. I think it must all be there. 

Q. How much is there; what is the total amount that is deposited in the name of the reg¬ 
istry of the court.—A. There must be $300,000 or $400,000. 

Q. Does that money now remain in the Bank of Mobile.—A. I presume it does; I have 
never heard anything to the contrary. 

Q. Did you ever receive a fee in the case of the United States against 120 bales of cotton, 
Josiah Morris, and J. F. Johnson, in the middle district of Alabama.—A. I received a draft 
for about $300 from James Q. Smith in that case. 

Q. Are you certain as to the amount you received.—A. I know it was between $300 and 
$400. 

Q. Are you certain it was not $500.—A. I am certain that it was not $500. 

Q. What services did you render in that case.—A. I assisted Smith very materially in 
arranging the testimony, and l was associate counsel with him upon the trial of the case. 

. Q. You were there and associated with him upon the trial of the case.—A. I was, although 
I took no active part in it. 

Q. Did you take any part in court so that anybody present would have supposed that you 
was counsel in the case.—A. They may have supposed that I was a friend ; I certainly fur¬ 
nished him a great number of authorities upon the points which arose. 

Q. But in the actual progress of the trial in the court did you do anything in the court 
from which a bystander would have known that you were counsel in the case.—A. They 
must have supposed I was interested in a friendly way, at least. 

Q. Why must they have supposed that.—A. Because I was there with various law books. 

Q. Iu the court-house, or in Smith’s office.—A I was in the office and in the court-house. 

Q. Were you in the court-house, during the progress of the case, aiding Mr. Smith.—A. Yes. 

Q. Was that the first trial in the action of trover, or was it the latter trial.—A. It was in 
the second trial. The case was thrown out of court I think in the first trial, which was in 
the spi'ing term of 1866. 

Q. In the second trial, then, which was in December, 1866, you were present and aided 
as counsel in the case.—A. Yes. 

Q. Who employed you in that case.—A. Smith asked me to appear for the informer. 

Q. Did you ever speak to the informer.—A. I did. 

Q. Did you consult with him about the case.—A. I consulted more with Mr. Smith than 
with Mr. McCroskey. 

Q. Did you consult with Mr. McCroskey about the case.—A. I know I saw Mr. McCros¬ 
key and Mr. McKinney, his former counsel, and we had quite a discussion regarding the 
form of action. 

Q. Do you know whether any evidence was produced on that trial that was not produced 
on the trial of action of trover.—A. I do not recollect whether the same evidence was pro¬ 
duced at the second trial that was at the first trial. I know I took some interest in the 
matter because I thought that Barney McKinney made a very extraordinary opening speech, 
introducing the Saviour and almost everybody else, and I became interested in the case. 

Q. You said you assisted Smith very materially in the arrangement of the testimony in 
the court; now, if the testimony was the same upon that trial as it was upon the trial before, 
and which you did not assist in, how was it that you rendered Smith this assistance.—A. I 
have not said that the testimony was the same. 

Q. Suppose somebody else were to say that. It being the fact that the testimony on the 
two trials was substantially the same, how was it that you rendered Smith important assist¬ 
ance in the second trial.—A. I assisted very materially iu the preparation of the case. 

By Judge Busteed: 

Q. What is your father’s name.—A. Noah Worrall. 

Q. How long has he lived in New York.—A. He was born there. He is about 60 years 
of age. 

Q. What is his business.—A. He is in the iron business, and his father was before him, 
since 1810. 

Q. Do you know who drew your grandfather’s will.—A. I believe you did. 

Q. How long has your father done business on the same spot in which he is now doing 
business in New York, and where is it.—A. Ever since he was about 18 years of age; it is 
in the 6th ward, in Elm street; their office was formerly in Pearl and Duane, but it is now 
in Elm street, and their works are at Elizabethport, New Jersey. 


295 


Q. What are your father’s pecuniary circumstances.—A. He is considered a man in very 
good circumstances ; a man abundantly responsible. I suppose he is worth from $300,000 
to $500,000; he may be worth more ; he is worth that, I think. 

Q. Do you know General Burke’s handwriting.—A. I have seen it; I think I ought to 
know it. 

Q. You spoke of Judge Busteed showing you a letter from General Burke in respect to a 
present or a sum of money given by General Burke to Judge Busteed ; look at the paper 
shown you and say if that is the letter.— A. That is the letter. 

(Judge Busteed read the letter, as follows:) 


“Huntsville, March 13,1868. 

“Dear Judge: The recent cowardly attack upon you, by which it was sought to take 
you from your sphere of usefulness and deprive your friends of your counsel and assistance, 
has no doubt entailed upon you consequences physically painful and personally embarrassing. 

“In this conjuncture the undersigned, lovers of your goodness, admirers of your genius, 
and interested in your welfare, beg that you will accept the enclosed to assist you in defray¬ 
ing the expenses of your recent illness, which have been, no doubt, very great. We ask 
you to accept this from us as ‘Richard Busteed,’ our friend , purely personal as the gift is, 
and as a mark of our personal devotion to and attachment for you as a man. 

“ If you were wealthy of ‘ this world’s goods,’ with a large fortune to lean upon, we would 
consider this unnecessary; but we know that your small salary and your large outlay leave 
you little. All we wish is that Heaven may spare you long to inspire your friends with 
hope of a glorious future, and that your greatest services to the country are yet to be per¬ 
formed. 

“With great respect, your devoted friends, 

“ J. W. BURKE, 

“ LIONEL W. DAY. 

“Hon. Richard Busteed, Montgomery .” 

Witness resumed. In this case of Connelly and O’Reilly vs. 139 bales of cotton, Mr. 
Smith thought I was wrong in my recollection of the decree. I have it here; it is just as I 
said it was: “A decree will be entered giving to the claimants, Connelly and O’Riley, $100 
each, extra compensation, an allowance of counsel of $50. No salvage money allowed.” 

Q. The decree to which you have just referred has no relation to Smith’s claim. Was not 
the decision in the case which I presented in evidence yesterday, in favor of Walsh, Smith 
& Co. as libellants; and was it not upon the net; and was not the cost taken out of the 
proceeds; and have you not got your cost independent of this $50 which was paid you by 
Walsh, Smith &, Co., and for which they took your receipt.—A. I do not understand that 
Walsh, Smith & Co. were libellants; they were claimants. With regard to this specific 
fact I have no recollection at all. I had a very impertinent demand for the payment of this 
$50. I went to see Mr. Walsh. He told me to pay no attention to the matter. 

By Mr. Churchill: 

Q. Do you know of Judge Busteed ever taking a bribe in his office as judge, or of accept 
ing any money or doing any corrupt act as judge.—A. No, sir; I do not. 

Q. Do you know of his ever taking any present from any person except what you have 
stated to the committee.—A. No, sir. 

Q. Do you know of his having any interest in any costs, fees, or business done by your¬ 
self, Mr. Smith, Mr. Andrews, Jacob Wilson, John Hardy, or any other person.—A. No, sir. 

Q. You know of none of these things, either directly or indirectly.—A. I know of none of 
them, either directly or indirectly. 

Q, Have you no information from the judge or from any other person of this kind.—A. I 
have not from the judge, or from any other source. . 

Q. You yourself have had no relations to the judge in regard to business done in Alabama 
which you have not disclosed to the committee.—A. No, sir. 

Q. This money that was deposited in the registry of the court, was it kept in more than 
one bank in Mobile.—A. No ; in the Bank of Mobile. 

Q. How was the account headed.—A. I think, “The Mobile Bank in accouut with the 
United States District Court.” 

Q. Was there any other person named in connection with the court.—A. No, sir ; in the 
identification book the signatures were put down of “ Richard Busteed, judge;” “ Counter¬ 
signed L. Worrall, clerk.” 

Q. For no other purpose than for identification.—A. For no other purpose. 

Q. Wiio made the deposits in the registry of the court.—A. The clerk. 

Q. You did it, then, while you were clerk.—A. Yes. 

Q. In what name did you make the deposits.—A. In the name of the United States district 
court. 

By Mr. Eldridge : 

Q. Do you know, or have you any information, or can you give us the name of any person 
who has information, whether Judge Busteed has ever removed any money which has been 


296 


received by the court, by the judge, or by the officers of the court, from the State of Alabama, 
to any other place.—A. I do not know of any person who can give this information. I do 
not believe the act was ever done. 

Q. Was not part of the money deposited in the registry of the court removed to New 
York.—A. No, I never heard of it until since I have been in Washington, that it was one ot 
Smith’s charges. 

Q. Do you keep a bank book.—A. Yes. 

Q. Where is it.—A. The clerk at Mobile has it. I know with regard to this particular 
fund that it was entered in the bank book, for I saw it. 

Q. Do you keep your bank account for moneys belonging to the government in the name 
of L. Worrall, or in the name of the court.—A. In the name of the court. 

Q. Did you have a private account at the bank.—A. Yes. 

Q. Did you have separate bank books.—A. O, yes. 

Q. Do you know of the judge receiving any interest in any way upon the amount left 
there on deposit.—A. No. 

Q. Did you receive any interest.—A. Not the slightest. 

Q. Did any one, so far as you know.—A. No one. 

Q. Do you know of any fact you can give the committee that will enable them to obtain 
any further information upon the charges made against Judge Busteed.—A. I do not, sir. 

Q. Did the judge, so far as you know, ever receive the whole or any part ot the proceeds 
of any check drawn upon the fund in the registry of the court.—A. So far as I know, he 
never did. I never heard that he did ; I do not believe he did ; I think the judge left that 
matter exclusively with the clerk of the court. 

Q. Who succeeded you as clerk.—A. Mr. Trimble. 

Washington, D. C., February 8, 1869. 

Jacob Wilson sworn and examined. 

By Mr. Semple : 

Question. What is your name.—Answer. Jacob Wilson. 

Q. How old are you.—A. I think I am about 40 years of age. 

Q. Where have you lived.—A. I always lived in New York. 

Q. When did 3 r ou go to Alabama.—A. I went down to Alabama in 1865. I went with 
Andrews. 

Q. How Ions: was that after Judge Busteed went to Alabama.—A. We went on the same 
boat—on the same steamer. I was with Andrews a few years before, and he took me along 
to Mobile. 

Q. Was you his servant.—A. I was not exactly a servant of his ; I was always with 
him. He took me along. I was always in the custom-house along with him. I was not 
scared for any man. I went along the docks and ships at night looking out for rogues. He 
thought I would be a good man to take to the south to protect him against the rebels, &c. 

Q. He took you for his protection.—A. Yes. He was to get me something to do there. 

Q. Did he get you anything to do.—A. Yes. First he got me an appointment as night 
watchman in the custom-house in Mobile. 

Q. Did he get you any other appointment.—A. No, he did not get me any other appoint¬ 
ment except, as I say, in the custom-house. While there was nothing doing Andrews and 
the judge went off to the north. I was myself in the custom-house of nights. 

Q. Who got you the appointment of deputy marshal under John Hardy.—A. I think 
Hardy did it himself. I begged it off him. I was special deputy sheriff of New York a 
good while. I begged it off him. He said, “I cannot appoint you deputy ; I understand 
you have not an education ; I give you special deputy.” Which I always was. 

Q. Did you wait on the judge’s room ; was that a part of your duty.—A. No; sometimes 
I did it to favor the judge. I heard things which were going on against the judge. He was 
one of my particular friends. I told Andrews a good deal. I told the judge, “Judge you 
got to protect yourself; they are like snakes round you in the bar; behind you they will do 
anything they can get a chance.” He said, “ You are a fool.” He did not believe it. The 
judge did not want me along with him. I followed him in the theatre, I followed him in 
the church, I followed him wherever he went at night; he did not know it; he is one of 
my best friends. He saw me sometimes sitting in the church; he got mad; and if the 
judge had not put me away he would not have been shot to this day. I protect him ; I did all 
my best against these fellows who have come here before this committee. I am not ashamed 
in the committee to stand up before you; I was honest of my faithful duty which I had obli¬ 
gations upon me. I did it. 

Q. Did } r ou wait upon the room of the judge as his servant, opening the door for him as 
callers came.—A. No, sir; he had his colored man. I was not much in his room there; he 
did not like to have me stay there. 

Q. Did you or not stay about his room pretty generally.—A. No; except that I went 
there once in a while to see him. 

Q. Do you remember being at the judge’s room when Josiah Morris was at Mobile.—A. 
Yes ; I remember it very well. 


297 


Q. Did you come with Josiah Morris up to tho judge’s room.—A. No; Josiah Morris 
came up himself with two gentlemen more. 

Q. Did they all come together. A. \es: I expect two came up, aud the third came up 
after, though that I do not remember exactly; I know he did not come alone. 

Q. Then you were not in the judge’s room alone with him aud Josiah Morris at all.—A. 
Not at all; the wholecompany were there together ; they just took drinks together. I under¬ 
stood he begged the judge to make a trip to Montgomery. 

Q. \ ou were not in the room alone at all with Judge Busteed and Josiah Morris during 
that time.—A. Never, sir. 

Q. Did Josiah Morris come to you, or did you tell him where he could meet the judge.— 
A. The first I saw of him was in the judge’s room with those other gentlemen ; the judge was 
standing up, and Morris got his hand upon the judge’s shoulders and begged him to^come 
down to Montgomery. The judge said he had a cold, and was almost sick. Morris said it 
would do him good. The judge said, “I will see about it; I do not think I could go down; 
I’ll let you know to-morrow.” 

Q. There was no time when you and Josiah Morris and the judge were alone in the room 
together.—A. No; the whole company was there 

Q. What company.—A. The company that Josiah Morris brought up with him. 

Q. Did you get two checks from Josiah Morris.—A. Yes. It was not regular checks ; the 
one a regular draft or check; another was a piece of paper wrote with a pencil. 

Q. Do you think you would know them if you were to see them again. — A. I do not know ; 
I guess not; I do not know it. 

Q. Do you swear that one of those papers which you got from Josiah Morris was in pen¬ 
cil.—A. 1 think it was in pencil; it was on a piece of paper; whether it was ink or pencil I 
am not certain. 

Q. Was there any printing upon it.—A. Upon one of them there was ; I think it was the 
check for $*2,000. On the check for $3,000 there was hot any printing; it was on Smith, 
Walsh & Co. 

Q. Which was the one that was in pencil.—A. I could not say exactly that it was in pen¬ 
cil ; it was a common piece of paper. 

By Mr. Eldridge : 

Q. What do you mean by saying that it was a piece of paper.—A. I mean that one had 
some printing on it; the other had not; he gave me that late in the evening. 

Q. Did he give them both to you at the same time.—A. No; he told me to call at the hotel 
and he would give me the other one. 

Q. W T here was it that he gave it to you.—A. It was down stairs, right in the post office; 
I went to go out in the street, and he was just coming up; he met me there aud began to 
have a conversation about the $5,000. 

Q. Did you have an execution in your hands against Josiah Morris, as deputy marshal, 
for $5,000.—A. No ; I never had any execution. 

Q. How did you come to get these checks from Josiah Morris, and where was it you got 
them.—A. I was coming down stairs; there was the post office. He says, “ How do you do, 
Wilson?” “How do you do, Mr. Morris? I am perfectly well.” “I am glad to hear you 
are very well. I want to make you a present of $5,000 ; I know you could do me a big favor, 
which I expect you will do.” I look at him ; I do not say anything. I said, “Mr. Morris, 
anything in my power to do for you I shall do it with pleasure.” I never believed a man 
was going to give me $5,000; I thought he was joking. He said, “You take it; it will be 
all right.” He says, “ You know Judge Rice ;” I said “ Yes.” He says, “ Judge Rice and 
Mr. Semple told me if you take it it will be all right.” I said, “Why I not take it? I very 
much obliged; I go to Europe very soon ; ’twill do me first rate.” He says, “ Wait a little.” 
I stood outside when he offered me the $5,000. He did not say anything else to me but 
“ favor;” he gave me one of the checks then. 

Q. Do you read writing.—A. Nq, sir. I sign my name ; I can hardly spell my name ; I 
learned some time to write my name. 

Q. What countryman are you.—A. A Russian. I was brought up in the navy. 

Q. How long have you been in this country.—A. I first came after the Crimean war. I 
was in the Crimean war, in the English navy ; then I was wounded; it was in 1855 or ’56. 

Q. Cannot you read in a book.—A. I can read a little Hebrew, about praying in the syna¬ 
gogues ; 1 could do a good deal more I never was in any school at all. Generally in the 
Russian navy, when they take men they take them very small. I had no father; my mother 
was very poor; I was on a man-of-war. Generally that is the case—they never learned them 
to read or write; and that was the reason why, when I had been 18 years in the navy, I 
never could come further than to be a sailor. 

Q. When Mr. Morris proposed to give you this $5,000, was that after Mr. Powell and he 
and Johnson had been up in the judge’s room.—A. It was after this. I saw Johnson in the 
Battle House. I did not trust myself about the money ; I tliinked he made a fool ot me ; I 
thinked I try him. “Mr. Morris, you think that check is good?” “ Yes, that is.” “Do 
you think your friends would endorse that?” He said, “Yes;” he said, “Johnson, would 
you endorse that?” He said, “Yes.” I said, “ If you will endorse it, I take it.” Then I 
said, “I take your word for it;” and I took it without his endorsement. 


298 


Q. Did either of these checks have an endorsement upon it when you took it.—A. No. 

Q. Just state whether he said he would give it to you.—A. That is all that passed; I can 
tell no more; anything else I do not know anything; I so innocent in it. 

Q. Then he did not mention the favor which you could do for him.—A. Nothing else. He 
said I could do him big favor; he said I must take that. I thought he was fooling me,, by 
pressing me to take it. He said Judge Rice *and Mr. Semple said it would be all right if I 
take it. Three or four weeks after I came to New York. I saw Andrews : I told him and 
everybody. I said that Morris had given me $5,000. 

Q. What Morris.—A. Morris who is a banker in Montgomery. 

Q. Who did you first tell that he had given you $5,000.—A. I told a good many ; I think 
the first one was James Smith & Co.; I told every one I got it. 

Q. How long after he gave you the checks was it when you got the money.—A. The next 
day. 

Q. When you got the money did not you tell somebody.—A. The whole city knew it. 

Q. Did you tell Judge Busteed.—A. Yes; the next day I saw the judge; I told him that 
Josiah Morris had given me $5,000—first $3,000, and then $2,000 more. 

Q. Did you tell him of his having given you $3,000 first before he gave you the other 
check.—A. No ; I told him the next day, when I had the whole money in my hands ; I had 
deposited it in the bank. When I came up and talked with the judge about it the judge was 
standing there at the table. He got a little suspicious of it. Says he, “Come here; sit 
down.” , Says he, “ You tell me how you came by the money.” I says, “ Morris pressed 
me to take the money.” “ Now,” said he, “if you tell me any lie you will take the conse¬ 
quences. Did he mention my name? Did he mention anything about suits?” He said, 
“You tell me; you tell me right! ” Said I, “ Judge, you can do what you please ; he never 
sa’d a word about anything; he only told me I could do him big favor.” 

Q. Did you keep the money.—A. Certainly. 

Q. You kept it.—A. Yes 

Q. Did the judge say anything to you about giving it back.—A. I went out of the place 
altogether; I am a Jew, Jews always go for keeping the 11th commandment. 

Q. What is the 11th commandment.—A. “If you have got anything, keep it.” 

Q. And you told the judge that Josiah Morris never mentioned his name in the transac¬ 
tion.—A. Yes; I told the judge he never says anything about the judge, or about law suits ; 
I did not know then that he had any law suits, or anything to do with the court whatever. 

By Mr. Eldridue : 

Q. Did you hear Wilson and the judge talk about the judge going to Montgomery.—A. I 
heard him begging the judge to go. 

Q. Was that when Morris went up first where the fudge was.—A. Yes, and two or three 
of them. 

Q. What did he want him to go to Montgomery for.—A. He said it would be good for him. 

Q. Did not the judge tell him he could settle the suit which he had up there.—A. No, not 
what I heard. May-be he said it when they were together; the room Avas not very big; they 
were talking loud enough for anybody to hear. 

Q. Did not the judge tell him he could fix up the suit, and that he would go up that night 
or the next morning.—A. No, the judge said “ I may come up ; I will let you know to-night 
or to-morrow.” 

Q. Was there something said about going to Montgomery.—A. Yes ; he said he was going 
to Montgomery. He says “You come with us.” The judge said, “ I got a cold.” He said, 
“It will not do you any hurt, we will have a comfortable place.” 

Q. After they took a glass of wine, who went away first.—A. All went away. 

Q. Did you go with them.—A. I went out; I cannot exactly remember, I think I went 
right away with them. 

Q. With Morris, Johnson, and another person, and left the judge alone.—A Yes. 

Q. Did not you stay a little after these men went out.—A. No ; I was round there at the 
post office; I went right out with them. 

Q. Do you know that you went out with Morris and Johnson; are you sure of it—perfectly 
sure of it —A. Yes. 

Q. You were not quite sure, first.—A. 1 remember now. 

Q. You are certain now.—A. I think I am. 

Q. Did you go down stairs with’ them.—A. No ; I went right up Royal street. 

Q. Did you not stop at all.—A. I did not. 

Q. Did you not talk with any of them at all.—A. I did not speak with any of them; I 
did not speak at all; they went out, and I went behind ; I kept within two or three steps of 
them. 

Q. How far up street did you go.—A. I went all along; I cannot say exactly. 

Q. Did you stop, going down stairs, or speak to anybody.—A. No. 

Q. Where did you see Morris first.—A. Down stairs. 

Q. How long after that.—A. It may have been an hour and a half after that, when I was 
in the post office, down stairs, standing there. 

Q. What Avere you standing there for.—A. I stand all over; I had nothing to do. 


299 


Q. Did you not go and tell Morris that the judge said he could not go up to Montgomery 
that night, but that he would go with him the next morning.—A. No. 

Q. Are you positively sure about that. —A. Yes. 

Q. Did you go and see Morris and tell him that the judge wanted the money.—A. No. 

Q. That he had better give it to him that night.—A. I never had such conversation with 
him about such thing whatever. 

Q. Did you not tell him that the judge wanted the $5,000 so that he could go up and settle 
the suit.—A. No. 

Q. Are you sure of that.—A. Just as sure as I sit here now. 

Q. What did you want it for.—A. I did not want it. 

Q. Why did you not give it back.—A. Because I would be a fool; in the first place, he 
did not ask me; and in the second place, I would not give it back if he had. 

Q. Did you not offer it to the judge.—A. No; I did not offer it to the judge, nor give it to 
him, nor give any part of it to him, or any one else. 

Q. What did you do with the money. —A. I bought my wife a set of jewelry for $1,300. 
I bought some gold and sent it up to my family. My family went to Europe. In three or 
four weeks after this, when I came from New York, I told Andrews I got the present. I 
staid five or six days in New York and went to Europe. 

Q. What did you promise Morris you would do.—A. Nothing. He did not tell me what- 
I should do, and if he did tell me may-be I would do it if in my power to do so. I said, 
“ anything in my power to do I would do.” 

Q. What did you think he meant.—A. I tell you now the real facts of the case. The first 
time when he did give me the money I did not think anything. I thought he was a rich 
man. After I heard the charges made about the judge and me, after I taken the money, I 
thought that was for Judge Rice or Mr. Semple to have something against the judge. 

Q. Did you go back and see the judge after Morris gave you these checks. Did you not 
go back there.—A. No. 

Q. Did you not go from the Battle House right over to the judge’s room.—A. No. 

Q. Are you sure about it.—A. Yes. 

Q. Was Johnson present when the check was given you.—A. Johnson was present. 

Q. Did you not go from the Battle House right over to the judge’s room.—A. No ; I went 
to my boarding-house. I had a boarding-house at the City Hotel. 

Q. When did you tell the judge you got these checks.—A. When I got the money. 

Q. Did you show him the money.—A. No; I never had the money. I deposited it right 
off. I was ashamed to go up for the money. I thought it would seem foolish. I gave the 
checks to a boy belonging to the bank. I took the checks there. They sent them up by the 
boy and got the money. I got the money the next day. I told the judge the next day. I 
told the judge the next day, between 1 and 2 o’clock. 

Q. I thought you said you went to the judge about 11 o’clock.—A. I did not see him at 
11, and I did not then know that I had the money. I did not go till 12 to ask whether the 
money was got. 

Q. Did not the judge promise to go up to Montgomery.—A. No. 

Q. Why did lie not go up to Montgomery.—A. Do you think the judge would tell me all 
his business ? I do not know why he did not go. 

Q. Did not the judge tell you to go out of the room and tell Mr. Morris that he had better 
send the $5,000 so that he could have it to use when he got up to Montgomery.—A. No. 

Q. And did you not come down upon the stairs and say that the judge would go the next 
morning, and that he thought he had better go by himself.—A. No; God forgive any such 
person that would swear like that. 

Q. How do you know that anybody swore to any such thing.—A. You says to me just 
now- 

Q. Has anybody told you what has been sworn to before this committee.—A. No, sir; I 
never had any conversation with any one. 

Q. Have you talked with Judge Busteed about what has been sworn to before this com¬ 
mittee.—A. No. 

Q. Have you talked with Andrews about it.—A. I have seen them, but I have never talked 
anything. 

Q. Has the judge asked you any questions about what you would tell.—A. No. 

Q. Have you not told Mr. Chandler what you would testify to here.—A. I did not say 
exactly what I would testify. I ask him how it is and what it is. 

Q. Have you not told the judge what you would testify..—A. No; you must think I am 
a child, asking such questions. 

Q. No; I do not think you are a child, by any means. Did you get $500 for making sale 
of some cotton one day as auctioneer.—A. Not $500; I got my commission of three per cent. 

Q. How much did that amount to.—A. I do not remember. I do not keep books. The 
marshal keeps account of it. 

Q. Well, how much commission did you receive.—A. I do not remember. Three per cent, 
for what the cotton sold for. 

Q. Do you remember how much it sold for.—A. It sold for $105 a bale. It was Natchez 
cotton—damaged cotton. 



300 


Q. How many bales were there.—A. I do not know. There was a great many. One- 
half of it I sold, and one-half of it was sold by somebod}- else. I got my commissions upon 
selling some articles I sold. 

Q. How much money did you make there.—A. I do not know. I got no idea. I spent a 
good deal of money. 

Q. You can tell whether you made $100,000.—A. I wish I had all the money gathered up ; 

I would sell it for $25,000. 

Q. Do you think you got that much.—A. I do not think I got one-quarter of it. 

Q. How much do you think you had —A. Anything you want to find out you will find 
it from the marshal. 

Q. About how much do you think you made more than $1,000.—A. I cannot say I do 
not think I ever had $1,000 at a time. The books of the marshal will show. I do not 
remember. 

Q. Did the judge ever give you any money.—A. I never asked him. 

Q. Did he ever give you any.—A. No. 

Q. Did Andrews give you any money.—A. No. Sometimes I would give Andrews $5 
or $10. 

Q. Did you give the judge any money.—A. No ; he never asked for it. 

Q. How came you to give Andrews money.—A. Sometimes Andrews, when he was there, 
would say, “ Give me $2, or $3, or $5.” The next day I got it back. 

Q. Did you always get it back.—A. Yes. 

Q. Did you never let him have more than $10 at a time.—A. No. 

Q. Do you say that you never stood at the judge’s door and let his callers in and out.—A. 
No, 1 was not stationed there. May-be sometimes I was in his room and I opened the door. 

Q. Were you not sometimes at his dwelling-house where he lived and his family.—A. Yes, 
when Andrews was there 

Q. Did you wait upon the door then.—A. No; he had a negro there—Frank. Sometimes 
Frank leaves and goes out, and when persons knocked on the door or rung the bell I went 
myself. 

Q. Did you wait upon the judge’s room when he lived at the custom-house.—A. No, I 
did not; he had a servant to wait on him. 

Q. Did you hold any office in court. Did you run on errands for him there.—A. No ; I 
went for United States marshal—for Hardy. 

Q. Did you not obey the judge when he told you to do anything.—A. If the judge sent me 
with a letter I used to do it. 

A. What pay did you get.—A. I got pay from the marshal. I was special deputy, and when 
I brought a letter for the judge, of course I asked no pay. 

Q. As special deputy, what pay did you get.—A. For a subpoena, so much ; for a warrant, 
so much. 

Q. What is your business now in New York.—A. I got good many businesses. I got some 
dry goods ; I go sometimes to auction ; buy and sell. 

Q. Are you still in Andrew’s employ.—A. No. 

Q. You do not live with him.—A. I never did. 

A. Did Andrews make a good deal of money down there.—A. I think when he not tell me I 
do not know. 

Q. Do you know whether he made a good deal of money.—A. I do not know whether 
he did. 

Q. What pay did you get as watchman at the custom-house.—A. Three dollars a night. 

Q. Who did you get that appointment from.—A. I got it from Mr. Montague, the collector 
of Mobile. 

Q. How long did you serve there.—A. A couple of months. 

Q. Have you got through down in Alabama.—A. I not afraid to go at any time. 

Q. Have you got through down there.—A. If I can have any situation there, I am ready 
to go. The first couple months I was there, I wanted to go with the judge wherever he went, 
specially when he got such snakes round there. I can make more money in New York ; I 
am doing a good deal better. When I went out from Mobile I had to borrow in some place 
to go to New York. 

Q. You have bought gold and jewelry with your money.—A. Yes ; I went to Europe; I 
spent all the money; I went down to Alabama again last winter; I vas not then in any 
emplo} T ment at all. Worrall got me some time custodian in the bankruptcy. 

Q. Do you meaij you were custodian. What did you do.—A. Taking care of the property. 

Q. Do you recollect about some cotton being changed once down there that was taken 
from the Planters’ warehouse.—A. Yes; I recollect about the complaint of Withers ; he 
was a particular friend of mine. 

Q. Do you know anything about that cotton.—A. Yes. 

Q. What do you know about it.—A. The cotton was to be sold; it was published in the 
paper to be sold. I was a very great friend, I always was, of Withers. I said to him, 
“Now that cotton is going to be sold ; you know that cotton; you know it is very good 
cotton, and it is better for you to pay the costs for Williamson; you take the cotton and sell 
it; you make your commission on it ” He says, “ Wilson, I think you quite right.” I said, 


301 


It is better for me to have it sold; I would have my auctioneer’s fees ; but they want to 
buy it cheap here, especially the pickery men. You had better buy that property yourself, 
take it out yourself, and pay the costs.” He says, “ I think that is right.” He did it that 
way; he paid the costs to the marshal and took the cotton out. He met me in the street, 
and says, ‘‘Mr. Wilson ”- 

Q. You took charge of that cotton, did not you.—A. No ; I took the receipt of the ware¬ 
house. 

Q. Whom did you give that receipt to.—A. The receipt was always kept in the office of 
the marshal. 

Q. Did you not endorse that receipt to somebody.—A. No. 

Q. Who moved that cotton ; did you.—A. No; I gave the order, if I took an order for 
cotton to go to the pickery; I went out and took the order, as I went to Hurtel & Hammond, 
and told him the cotton had to be removed and sent to the pickery. 

Q. Tell me, what did you do.—A. I went up to him ; I told him to send some cotton up 
to the Verona warehouse; he sent up his drays and got it. 

Q. Did you go with it.—A. No. 

Q. Who told you to move the cotton from the Planters’ warehouse.—A. I had orders from 
the marshal, John Hardy; he thought I would not move it without the order. 

Q. Where was the cotton changed.—A. I do not think it was changed anywhere. 

Q. Did you not tell Withers that it was not the same cotton when you went to look at it.— 
A. I said it did not look like the same cotton. 

Q. Where was the change.—A. How do I know where it was changed; I was not there. 
If it was changed it would be by the warehousemen. 

Q. Did you not do it yourself.—A No. 

Q. Was there any of this cotton taken to the pickery.—A. Yes. 

Q. What for.—A. It was not in a condition to keep in that way. Some of the bundles 
were falling to pieces: you got to have it repacked. 

Q. Withers says it was all in good condition when it was at the Planters’ warehouse.— 
A. He will not say so to me; I am very glad Withers got such good judgment to say so. 

Q. Do you know that it was not in good condition.—A. Yes; I know some of it was not. 

Q. Was not the Planters’ warehouse a good warehouse. —A. I never went there for the 
cotton at all; they moved it themselves, with their own drays. 

Q. You do not know who changed the cotton.—A. No; if I had not been a friend of his 
he would never go to that rebel for the cotton. I told him to go up to the judge and get an 
order; I told him that they wei'e responsible for the cotton if it was changed there. 

Q. Do you know Palmer.—A. I know him as I saw him in the warehouse there; he was 
a partner in the warehouse. 

Q. You know Coleman.—A. No; I know him by sight. He was always around the 
warehouse ; I do not know what he had to do with that cotton. 

Q. Did you give him any order.—A. I left an order in the office. I do not remember 
whether Coleman was in; any one that w r as attached to the warehouse could go and get the 
cotton with that order. 

Q. Did you give the order.—A. I gave the order myself; I left the order; anybody could 
go w T ith the order and get cotton. 

Q. Do you know whether Coleman changed it or not.—A. No, I do not. 

Q. Do you know who paid for that cotton.—A. I think the warehousemen paid for it; the 
warehousemen, I suppose, stole it and paid for it. 

Q. What did you go to New Orleans for.—A. Hurtel & Hammond begged me to go on 
there. 

Q. What for.—A. To get the money. 

Q. Who did you get the money from there, and how much.—A. I got the money from 
Palmer—four thousand and some odd dollars ; I do not remember exactly how much; I got 
the money; I brought it back and gave it to Hurtel. 

Q. What did Palmer say about it, when you went down there for it.—A. Not much. He 
says, “What is the money for ? ” Said I, “ There is a letter from Hurtel to you.” He read 
the letter and he gave me the money. 

Q. When you first saw him, what did you say to him.—A. “Mr. Palmer, I got a letter 
from Hurtel: he expects to have some money.” He says, “For what? ” I says, “Open 
that letter and you will see what for.” 

Q. You did notread the letter.—A. No, I did not, for two reasons: first, the letter was 
sealed up ; and, second, I could not read the letter if it was open. 

Q. When he gave you the money what did he say.—A. Nothing that I recollect. He 
says, “All right, I give it to you.” 

Q. Did he give you as much money as Hurtel expected.—A. I suppose so. Hurtel says, 
“ All right.” 

Q. Did Hammond have anything to do with it.—A. Hammond says, “I do not want to 
know anything about it; you go to Hurtel.” # 

Q. Did the judge tell you to go down to New Orleans at that time.—A. Ao; Hurtel 
wanted I should go, and promised me to pay my expenses if I would go with that letter; he 
never paid me, though. The judge says, they were bound to pay for the cotton; “ They are 
responsible for the cotton.” 



302 


By Mr. Churchill: 

Q. Did you get the receipt from Hurtel & Hammond for this cotton before it was 
removed.—A. Yes. 

Q. They gave you the receipt when you first ordered them to remove the cotton from the 
Planters’ warehouse. To what warehouse did you direct them to remove it.—A. To any 
one of his warehouses where he was the responsible man. 

Q. Did the receipt mention the number of bales and the marks on the bales.—A. Yes. 

Q. Did you give him any directions with regard to the cotton at all.—A. No; I told him 
the cotton ought to be removed ; that some bales ought to go to the pickery. 

Q. How many bales did you tell him should go to the pickery.—A. I do not remember. 

Q. You told him, when you first gave him the order, he must take part of the bales to the 
pickery; did you tell him how many.—A. Yes, I guess I did; I did not tell him to take 
them all. 

Q. What reason was there for taking the cotton out of the Planters’ warehouse.—A. 
Hammond was recommended as one of the most responsible men in Mobile. 

Q. Were they any more responsible than the Planters’ warehouse was.—A. I think I 
would take Hurtel & Hammond, as far as I am posted about it, in preference to the 
Planters’ warehouse. 

Q. Have you ever had cotton stored in the Planters’ warehouse —A. Yes. 

Q. Had you had any difficulty before this time at the Planters’ warehouse.—A. I know 
some warehouse promised to give me a half a dollar a bale if I would fetch up all the cotton 
which I seized ; they charged a dollar a bale, and they said they would give me a half a dollar 
a bale. 

Q. Was that at the Planters’ warehouse.—A. It was the warehouse where McKee was—a 
very thick-set man. 

Q. You said you had had cotton stored in the Planters’ warehouse before this time.—A. 
No; it was there, and I didn’t move it. 

Q. You have had cotton there on store in the Planters’ warehouse.—A. Yes. 

Q. Have you had any trouble in getting cotton from the Planters’ warehouse when it was 
called for.—A. A couple of times they were not ready to send the cotton. 

Q. Did you get the cotton.—A. I had to send the marshal down to Colonel Griffin’s house. 

Q. Was this at the Planters’ warehouse.—A. I do not remember. It is Colonel Griffin. 

Q. I am asking you whether you ever had any difficulty in getting cotton stored at the 
Planters’ warehouse.—A. Who was there ? Was it Colonel Griffin ? I don’t know the 
warehouse except I know the name of the owners. 

Q Do you know the werehouse in which this particular cotton was stored before its 
removal to the Verona warehouse.—A. I don’t remember. I don’t know it. I remember 
the warehouse if you tell me the man’s name. 

Q. Before you got this receipt from Hurtel & Hammond, had you not seen the cotton.— 
A. No ; I had never seen it. 

Q. Where did you get the marks from that were put into the receipt that was given to you 
by Hurtel & Hammond.—A. I got the marks from the marshal. 

Q. Did you seize that cotton for the marshal.—A. No; I didn’t seize that cotton. It was 
seized in the middle district. 

Q. Had you seen this cotton at all before your interview with Hurtel & Hammond.—A. 
Not at all. 

Q. Had you any personal knowledge as to where it was stored before you got the receipt 
from Hurtel & Hammond.—A. No, sir. 

By Mr. Smith : 

Q. Did you not come to my office claiming considerable of a sum of money—over 
$1,000—for balance of costs on 662 bales of cotton, which had been dismissed in the court.— 
A. No ; I remember to have claimed $200. 

Q. You recollect you came there.—A. Yes. 

Q. Do you recollect my telling you I wanted to understand what had become of the 239 
bales of cotton that you had stolen.—A. No. 

Q. You don’t recollect that your reply was, “ When you found the 662 bales, they were 
all right; were they not?” in the back room of my office.—A. That was not in the back 
room at all; it was in the front room. 

Q. Do you deny that you came there in my back room, when I was sitting at my desk, 
and demanded a considerable amount of balance of costs that you claimed upon the 662 
bales.—A. I don’t remember. 

Q. And I told you then I wanted to know what had become of the 239 bales which you 
had stolen.—A. You never used such language to me. If you had used such language to 
me down there—(gesticulating rather violently)—but you think you can come here before 
the committee and talk in that way. 

Q. Did I not say I wanted to kuow what had become of the 239 bales, and your reply 
was, “ didn’t you find the 662 bales all right.”—A. I don’t think I ever made such an 
answer. 

Q. After you got the $5,000 as a present, how did you carry that money to New York 
when you went.—A. I did not carry the $5,000 with me when I went. 


303 


t 


Q. How much did you carry -A. I got some jewelry ; I spent a good deal; I bought 
some gold and sent oft ; I bought a check from James Tate & Co.; I bought some gold 
trom St. John and other parties. 

Q. How much money did you carry with you when you went to New York.—A About 
81,300 or $1,400. 

Q. You ran away about the time you got the $5,000, did you not.—A. No, 1 staid like a 
gentleman ; I staid six or eight weeks after that. 

Q. When the thing begun to get out you went somewhere—you left, did you not.—A. 
No ; Morris sent me a letter. I did not go until I got ready ; what should I go for when 
Morris made me a present. 

Q. When you sold the 454 bales of cotton for $47,670, you got three per cent., and there¬ 
fore you received $1,430 10 for crying that cotton, didn’t you.—A. If the calculation is 
right; what the marshal said I got. 

By Mr. Elpridge : 

Q. You said you did not get $500.—A. No, I didn’t say $500 ; I got $300; but I said 
that, the marshal knew ; he had it in black and white; I say I got three per cent, for sellino-. 

Q. And you sold 454 bales for $105 a bale, and you sold it all in one lump.—A. Yes. 

Q. How long were you crying it—two minutes.—A. I cried it over 10 minutes—over 15 
minutes. 

By Mr. Smith : 

Q. The cotton was sold upon your affidavit; you were examined in court and swore that 
it was in a perishable condition.—A. Yes ; myself and the marshal said it was in a perish¬ 
able condition. 

Q. Have you not just said that you did not look at the cotton.—A. I did not after it went 
up to the pickery; not after I gave my orders to remove it. 

Q. After this transaction about this warehouse cotton and this 239 bales, you were acting 
as messenger in bankruptcy by order of the court.—A. Yes. 

Q. You were put in possession of a large store of goods by Judge Busteed.—A. No ; 
Judge Busteed had uothing to do with it; it was the register, Worrall, who made me 
custodian. 

Q. You had the run of that store of fancy goods about a month, didn’t you.—A. Yes. 

Q. How many lace shawls did you cram in your pocket and carry off.—A. I believe any 
goods that were stolen there were stolen by Mr. Smith, your brother, and by Johnson; they 
stole the goods; you need not laugh ; you will find how it is I believe they were stolen ; I 
will tell the story : Johnson came into court with his petition in bankruptcy, with Little 
Smith ; he files a lot of papers there and swears to his petition and went away ; Worrall told 
me, “ Here’s a big stock ; you've got to take care very hard of that store; there are over 
$24,000 of goods there; you’ve got to watch them night, and day.” I made out the 
affidavit there ; he gave me another paper to go to get the key from Johnson ; I came up to 
Johnson’s store; there was only a thin partition between that and the store adjoining; I 
said : “ Could I see Mr. Johnson ?” I was told that he had gone to the bankruptcy, and 
had not left the key there'; he said that Johnson had moved away; I went in the morning 
after Johnson; I could not get the key; two days afterwards I could not get the key; four 
or five days afterwards I saw Little Smith and told him that I could not get the key ; lie 
says: “Never mind, the man has a few articles there which are his own.” It went on 10 
days; on Friday I catched him in a little park there; I said: “Johnson, why don’t you 
give me that key?” He says : “I got some little business there; my counsel, Mr. Smith, 
told me I can keep the key until I am ready; when I am ready I will give the key.” I told 
Mr. Worrall that fact; on Saturday I saw Mr. Little Smith and I told him, “ You told John¬ 
son not to give up the key until he is ready ;” he says, “ Wilson, this is all right.” I kept 
on nearly a fortnight before I got the key from Little Smith ; after I got the key I got some¬ 
body to make an inventory; I found two men who had been in the employment of Johnson 
before he went into bankruptcy; they came in there and measured everything ; there were 
not half the goods there which were put in the inventory ; there was no unbleached muslin 
there at all; there was a thin partition and a gallery connected with the other store ; they 
could take anything they pleased ; Johnson must have stolen it, anyhow, for I did not come 
in until 14 days; then I took his own clerks, who knew all about the goods, and made an 
inventory of everything that was left; my belief is that Smith and Johnson stole the goods 
out of the store. 

Q. How long did you have the run of that store—A. About a month. 

Q. When you put up these goods to sell you put them up in pieces, did you not.—A. Yes. 

Q. A piece of silk, a lot of hoop skirts, &c.—A. There was not much silk; I think some 
of your relations had got some of these silks used up. 

Q. You cried out, “how much for this piece.”—A. No; Isay: “Gentlemen, here’s a 
piece of muslin ; here’s a piece of French goods, of so many yards; here’s a lot of five or 
six pieces of that sort; how much a piece do you bid ?” 

Q. When the goods were knocked down to the highest bidder did he not, in several 
instances, say, “here is the money, give me my goods;” and did you not tell him “you 


304 


can’t get your goods until to-morrow.”—A. No, sir; I had nothing to do with the delivery; I 
knocked down the goods to the highest bidder; here was the clerk; the name of the bidder 
was put on each piece, and it was put under the counter; after the sale was over every one 
came and took away what they had bought that day. 

Q. How much did the goods sell for at auction —A. That is not my business to know 
about. 

Q. Not when you controlled the sale.—A. I only was auctioneer ; I don’t remember what 
it was ; the assignee paid me, afterwards, my commission. 

Q. You got the three per cent, afterwards.—A. Everything was put down in black and 
white, and will show ; the marshal got what he pays me, and I suppose the register got 
what he pays me. 

Q. Then you sold 234 bales for $75 a bale.—A. I don’t remember; sometimes I was try¬ 
ing to get five per cent.; I took out a United States license for the purpose of selling. 

Q. Did you not get three per cent, for whatever you sold.—A. Sometimes I got three per 
cent., sometimes I got nothing. 

Q. Then there were 239 bales planters’ cotton which I charged you with stealing in my 
office. 

WITNESS. You would not have told me so down there. 

Mr. Smith. You scoundrel! I would have told you so, notwithstanding you had your pis¬ 
tols buckled around you. 

Witness. You would not have told me so down there, in your office; you come here 
before the committee and say so ; but I won’t hurt you; I’m a gentleman ; you swindled me 
out of $50. (Addressing the committee,) he won’t deny it. 

Mr. Smith. You demanded $50 black mail for executing the process of the court; I told 
you that. 

(Objections were made by the committee to this colloquy, and it was suspended.) 

Q. You sold 239 bales of cotton for $75 a bale.—A. I don’t remember. 

Q. You got three per cent, commission on the sale.—A. I don’t remember. 

By Mr. Woodbridge: 

Q. When you sold property at auction three percent, was your commission, was it.—A. 
Sometimes three per cent. 

Q. Was that your auctioneer commission or your commission as marshal.—A. I had 
nothing to do with marshal’s fees. 

Q. Were you not acting as deputy marshal.—A. No ; as assistant deputy marshal; some¬ 
times, if they had anything for me to do, as special deputy. 

Q. When was you last there attending the court in Mobile and waiting upon it.—A. The 
last time was before the judge got shot. 

Q. Have you not been there since that.—A. I was not attending court; I had no salary. 

Q. Have you not been at Mobile since that.—A. Yes; I was there last year. 

Q. What were you doing there.—A. I was doing many things—private business. 

Q. Were you not attending court.—A. No. 

Q. General Healy, the successor of Hardy, refused to allow you to be deputy marshal, 
didn’t he.—A. I never asked him; I got it done if I did. 

Q. Did you never get Judge Busteed to apply to General Healy to appoint you again.— 
A. If he did it, he did it without my consent. 

Q. You have been acting as messenger in the bankrupt court since you got that $5,000. 
You had charge of all the bankrupt assets from the time the bankrupt goes in and delivers 
up his goods to the time of the appointment of an assignee.—A. Not always. 

Q. Did you have charge of a grocery store then.—A. Yes. 

Q. Did you sell that out.—A. Small, little pickings fetch 20 or 50 cents; old boots, old 
shoes; they took me for auctioneer ; in big things they took another. Davis & Hall’s was 
not sold by me ; La Baron & Co. sold all the large stocks. 

Q. You had charge of a grocery store, didn’t you.—A. Yes. 

Q. Were you informed that at night goods were stolen from that store.—A. Yes. 

Q. Did you make any inquiry to ascertain who was the thief—A. Yes ; I went down to 
arrest your son about that. I told him, “You must tell me who the man is.” He says, 
“ Never mind who the man is ; I think it is all over.” I told him, “ If you will not tell me 
I will have you arrested.” Let your son be brought up here ; I was after him, and I told 
him, “ If you don’t tell me I will tell your father about it.” Your son would not tell who 
did it. 

Mr. Smith. My son told you you knew well enough who did it. 

A. Let him come up here and say so, if he knows it; if he knows it, it was his duty to 
come up here. 

Q. Cotton is stored in Mobile by the month, is it not.—A. Yes. 

Q. And when you change it within the month from one storehouse to another you increase 
the storage, don’t you; you commence a new storage.—A. I don’t know about that. 

Q. And that created the necessity for a new insurance, did it not.—A. I don’t know any¬ 
thing at all about it; it was the marshal’s business to see to that. 

Q. What did you do with the telegram which Sherwood Hall, the runner of the telegraph 


305 


office in Mobile, delivered to you on the 26tli of June, 1866, directed to Worrall and John 
lardy.—A. I know nothing at all about it; I don’t think I ever had one : may-be I had one ; 

1 will not swear that 1 did not get it. If I did, I put it on the table in the clerk’s office, for 
Judge Cuthbert. 

Q. When a man delivered to you a telegram, or any other letter, not being able to read it 
yourself, did you not inquire who it was for.—A. No; I did not inquire. 

Q. What did you expect to do with it.—A. Nothing at all; it was not my business there. 
May-be some of you fellows came in and took it; I would not trust you. If I received it I 
put it on the table. 

Q. Do you not know that the 239 bales were changed.—A. No; only what Withers told me. 

Q. I am talking about the Planters’ Factory cotton, the 239 bales; do you know by whom 
they were changed.—A. No. 

Q. Had you Poked at that cotton before it was sent off, or not.—A. I don’t remember. 

Q. You remember the 239 bales which you sold.—A. I do not exactly remember. I know 
I sold what the marshal had to sell. 

Q. How can you remember whether you looked at the Withers cotton before or not.—A. 

I did not examine the Withers cotton ; he showed me the sample, and said that the cotton 
was changed. 

Q. If you did not examine the Withers cotton, how did you know how much of it ought to 
go to the pickery; did you examine the 239 bales before it was moved from the Planters’ ware¬ 
house.—A. I think I overhauled it with Hardy. I know there was a difference in the bagging. 

Q. If there was different bagging and new bagging, and the bales had been altered, what 
was the reason you could not ascertain that if you had examined it before.—A. It was not 
my business ; I was brought up there to sell the cotton, and the more I sold the more I made. 
I got my commission. 

By Mr. Chandler : 

Q. Did you receive the medal of the Humane Society in New York.—A. Yes. 

Q. Have you got it. 

(Question objected to, but allowed and modified, as follows :) 

Q. Did you receive a medal, and what for.—A. For saving lives ; I jumped into the float¬ 
ing ice, and they were saved—two at once. 

(The medal was exhibited to the committee.) 

Q. Will you state whether you were in Mobile the day Judge Busteed was shot.—A. Yes. 

Q. State whether you saw Robert H. Smith with Martin shortly before Judge Busteed was 
shot; and if so, under what circumstances. 

(Question objected to by the committee, and not admitted.) 

Washington, February 8, 1869. 

Rufus F. Andrews sworn and examined. 

By Mr. Smith : 

Question. When did you first go to Mobile.—Answer. I think it was in November, 1885. 

Q. With whom did you go.—A. With Judge Busteed and Mr. Worrall. 

Q. How long did you remain there.—A. I remained there, I think, until some time in Feb¬ 
ruary. Then I came to Washington, and afterwards returned to Mobile. 

Q. When did you return.—A. I think it was in March; I cannot remember the date. 

Q. When did you leave again.—A. In April or May—I think in May. 

Q. About the time Judge Busteed went to New York.—A. Yes, sir. 

Q. When did you go back again.—A. Not until the next year, 1867. 

Q. How long did you stay.—A. I was only in Mobile a few days at that time. I then 
went to Montgomery, where I was sick for a couple of weeks. I then returned to Mobile, 
when the judge received a telegram of the illness of his daughter, and I left with him to go 
home. 

Q. Have you been back since.—A. No, sir. 

By Mr. Woodbridge: 

Q. When were you last there.—A. In June, 1867, I think. 

By Mr. Smith: 

Q. Do you know Joseph C. Palmer.—A. Yes, sir. 

Q. Where does he live.—A. I do not know. 

Q. Do you know whether he lives in New Orleans.—A. I do not. 

Q. Do you know whether he went to New Orleans.—A. The last time I heard of him he 
was in New Orleans. 

Q. What was his business when in Mobile.—A. He was partner, I believe, of J. S. Clark, 
of New Orleans.- 

Q. In what business.—A. In the cotton business, I think. 

Q. Were you and Mr. Palmer the sureties on Mr. Worrall’s bond.—A. Yes, sir. 

By Mr. Busteed: 

Q. Upon which of his bonds.—A. His bond as clerk. 

Q. What was the amount of it.—A. I do not remember. 

20 B 


306 


By Mr. Smith : 

Q. Did you sign the two bonds, one of April, 1865, and the other of 18th December, 1865.— 
A. L cannot remember. I recollect signing one bond 

Q. What property have you in the State of Alabama.—A. I have none. 

Q. What did Mr. Palmer have.—A. I do not know. 

Q. Did you know anybody in Mobile before you came there.—A. No, sir. 

Q. Did you bring any letters of introduction.—A. No, sir. 

Q. When you were there, where was your office.—A. I had no office of my own. I made 
an arrangement with Judge McKinsley to occupy his office and use his library whenever I 
pleased. 1 was in his office most of the time. 

Q. You occupied the rooms immediately opposite the judge’s chambers in the custom¬ 
house.—A. At one time I occupied that room for a few weeks when I was attending to some 
business for the government. 

Q. You attended to the case of Dexter.—A. Yes, sir : that was the first case I had. 

Q. You appeared or was employed in several other important cases.—A. Not for some 
time. I devoted my time to the Dexter case, and for six weeks or two mouths, I believe, the 
court was not in session. 

Q. Was there any business transacted in the United States court after the Dexter case was 
disposed of.—A. I do not recollect. The Dexter case was before the military commission 
some two months. I was first employed by Judge Campbell and Judge McKinsley to appear 
on the habeas corpus taken out in behalf of Dexter before Judge Busteed. 

Q. Did you know Judge Campbell and Judge McKinsley before that.—A. No, sir. 

Q. What fee did you receive.—A. I received, I believe, a retaining fee of $1,000. That 
was very soon after the case commenced. 

Q. Then how much more.—A. After that the case went along. I was employed to go to 
Washington. I then received a fee of $5,000, out of which I paid Mr. James T. Brady 
$1,250, besides his expenses while here, and to General B. F. Butler $500, and my own 
expenses in Washington during the time I was here, and travelling expenses back and forth. 
That is all I received in the Dexter case. 

Q. Do you know why you were selected.—A. Yes, sir, I do. I was selected by Judge 
Campbell and Judge McKinsley because of the test oath, which prevented the lawyers of 
Mobile to either appear or practice in the courts. 

Q. That was the first thing Judge Busteed decided in the courts.—A. The first thing was 
to hear the habeas corpus case. 

Q. That was sitting in chambers ; I refer to open court.—A. He did that in open court. 

A. Well, with the exception of that.—A. I cannot say. I do not recollect whether there 
were other things or not. I had connection only with the Dexter case. 

Q. At whose house did you live—A. I lived at the house Judge Busteed occupied— 
Madame Le Vert’s house. 

Q. After Judge McKinsley broke up housekeeping, where did you have your bed-room.— 
A. I do not remember ; we were not there very long after they broke up housekeeping. I 
think I left soon after. 

Q. And did not return.—A. I do not remember whether I returned or not. I know it was 
not a great while after they broke up housekeeping before I went away. 

By Judge Busteed : 

Q. You do not know where you slept.—A. I think I stayed at Mr. Palmer’s house about 
a week. 

By Mr. Smith : 

Q. Did John H. Gardner employ you in any matter.—A. He spoke to me about some 
matter of his pending in court that he wanted me to look after, and he desired to employ me 
to recover some money which he said was due to him from insurance companies growing 
out of the Natchez cotton cases. 

Q. What insurance companies.—A. I cannot remember the names now. I think the 
Great Western was one. 


Tuesday, February 9, 1869. 


By Mr. Smith : 

Question. Where was this money that you undertook to get for John H. Garner.—Answer. 
I did not undertake to get any money for Garner. 

Q. Did I not understand you to say, yesterday, that he had employed you.—A. Yes, he 
employed me to recover some money, as 1 understood him, from the insurance companies 
relating to the Natchez cotton cases. 

Q. Was not Garner’s interest in the proceeds of he sale which had been made by order 
of the court of the 454 bales of the Natchez cotton the money you were employed to get.— 
A. That money was mentioned, but the money I was employed to get was money he expected 
to recover from the insurance company. 

Q. From what insurance company.—A. I cannot tell you. 

Q. Do you know that this cotton was insured in London.— A. I know that one of these 


307 


companies was a London company, but it had an agent in New York, and the a^ent was 
then in Mobile. 

Q. Now, was not the whole of Garner’s cotton insured in one London or Liverpool com¬ 
pany.—A. I eaunot tell you. I do not now remember. 

Q. Well, when you undertook to get it, how is it that you cannot recollect where the 
insurance company was located.—A. I did not say that I undertook to get it, but that Gar¬ 
ner desired to employ me to recover his money from the insurance company. I had some 
conversation with him on the subject. 

Q. Did you not agree to do it, and did you not receive a fee from him.—A. No ; he offered 
me a fee. I did not accept it, and I had no tee from him. 1 did not tell him I would take 
the case or that I would not take the case. I simply had a conversation with him the Tues¬ 
day before I left Mobile, in which he said he desired me to assist him in the prosecution of 
the claims growing out of the Natchez cotton cases. I told him, very well, I would look the 
matter over, and if I saw no objections I would take the case. 

Q. You say his claim was not for the proceeds of the sale which was made by order of 
Judge Busteed.—A. No ; it was not that alone, but in part. 

Q. Where did Garner get his money from eventually.—A. I do not know that Garner ever 
got his money at all. 

Q. Did you not represent the United States in that libel.—A. I represented the United 
States in one or two motions when there was no district attorney ; but I did nothing but 
appear in the case. 

Q. Did you ever withdraw' your appearance of record for the United States in that case — 
A. Yes ; the district attorney took charge of it and said he did not desire my services any 
longer. 

Q. How did you first get employed in that case.—A. I do not recollect how I was first 
employed. My impression is it was by a letter from the Secretary of the Treasury ; 1 think 
so. 1 am not positive. 

Q. By some letter written to you.—A. No; it was written to the court, to the judge. 

Q. Did you ever have any correspondence with the Secretary of the Treasury, from Mobile, 
appertaining to the business of the court.—A. I think not. 

Q. Did you ever make any report to him of the business.—A. I am not positive whether 
I did or not. 

Q. Did you not assume to conduct generally these cases of the United States as counsel 
for the United States.—A. I did not. 

Q. Do you recollect the case of the Mary and the Red Gauntlet.—A. Yes. 

Q. You appeared for the United States in these cases.—A. Yes ; upon some motions in 
these cases, but not generally. I was employed by Major St. Paul, I think, and some other 
attorney in Mobile, to look over the case and appear upon the motion. 

Q. But Major St. Paul was representing the interests adverse to the United States, w T as he 
not.—A. Yes. 

Q. But did you not represent the United States in the case of the Red Gauntlet.—A. I 
think not; I may have been asked by the district attorney to appear upon some motion. I 
was not employed, certainly. 

Q. Do you recollect the case of 239 bales Planters’ factory cotton.—A. I recollect there 
was a case of 239 bales of cotton. I do not remember what factory it was. 

Q. Did you appear in that case.—A. I cannot say. 

Q. If you did appear, by what authority was it.—A. I cannot say whether it was by 
request of the district attorney or from some letter received from the Treasury Department. 

Q. But if there was any letter from the Treasury Department, it was not addressed to 
you.—A. That I cannot say. 

Q. Did you not say that you had received no letter from the Treasury Department —A. I 
said I did not remember that I had received any letter from the Treasury Department. 

Q. Were you not to receive one-half of the money in the Garner or Price Williams case.— 
A. Garner told me if I would undertake his case and would recover his money growing out 
of the Natchez cotton claims, he would give me one-half; my reply was, I will look into 
the case and see whether I will take it or not. I never saw Garner afterwards. 

Q. Did you ever get any of the money in the Garner case.—A. Not a cent. I never asked 
for a cent; nor did I receive any of the fees. I never knew there was a dollar paid to any¬ 
body. 

Mr. Smith read a paper purporting to be an order of Judge Busteed in the cases described, 
as follows: 

“District court of the United States, southern district of Alabama. In admiralty. 

“ Charles C. Newberry vs. sixty-six bales of cotton, Wm. C. Piggott vs. twenty-seven bales 

of cotton, and others against sundry bales of cotton, part of the cargo of the lighter 

steamer Natchez.” 

(This paper was inserted entire in the testimony of Mr. Worrall.) 

Q. With reference to that part which speaks of Mr. Andrews having been employed “ to 
oppose said motion;” is that true.—A. Yes. 

Q. Well, did you ever hear of such a proposition before, as a lawyer, when the United 


308 


States, or anybody else, claimed 227 bales of cotton, that without any identification of 
marks, without respect to whether it was the property of the United States or of other par¬ 
ties, 454 bales of cotton were seized.—A. Do you want my opinion as a lawyer upon the 
legal question, or the facts. 

(Question objected to, and waived.) 

Q. Well, that was the result of your action.—A. That was the decision of the court. I 
might say in that connection that the judge claimed that a fraud had been practiced upon 
him in the obtaining of the order consolidating these cases. 

Q. Of this order—A. No; the order which is referred to in the paper which you have 
read ; it says, “ these cases which were consolidated.” I remember distinctly the judge said 
that Mr. Peter Hamilton had committed a fraud in obtaining his order for consolidating 
these cases. 

Q. How did a fraud, in consolidating these cases, have any relation to his ordering the 
sale of the 454 bales.—A. I don’t know that. I only say that the judge t claimed that the 
consolidation was brought about by fraud. 

Q. Did you superintend the sale of that cotton, as the order of the court says you were to 
do.—A. I did not, any more than to direct the marshal to go on and sell it; i was not pres¬ 
ent at the sale. 

Q. The order says the cotton will be “sold under the rule of the court, by the direction of 
Andrews.”—A. Yes ; I directed the marshal to go on and sell it. I was not present at the 
sale at all. 

Q. What fee did you get in that case.—A. I did hot get any fee. I never presented any 
claim for any fee of the government or anybody else in the case. 

Q. What became of the case.—A. I do not know ; I believe it was not disposed of until 
a year or more afterwards. I appeared there because the court felt that a gross fraud had 
been practiced in the case, and that the consolidation had been obtained without his knowl¬ 
edge, and he desired that somebody should appear. That is the reason why I appeared. 

Q. Why, then, did you not make the motion to set aside the order of consolidation.—A. I 
think such a motion was made; I am not certain of it. I took such steps as, under the cir¬ 
cumstances, I thought proper to protect the property. 

Q. Did you ever make any motion in that cuurt that was overruled.—A. Yes, a great 
many. 

Q. Did you ever try any case in that court that you lost.—A. Yes. 

Q. Will you name one.—A. I tried two cases in that court—I did not lose them—in which 
the judge charged the jury against me, as I thought, very strongly and quite contrary to 
the law. I felt very indignant about it, but I beat him before a rebel jury. 

Q. Did you ever participate, except in the Townes case, in any prolonged or litigated 
trial in that court —A. Yes. 

Q. Will you name any litigated case in which you appeared and conducted it, either alone 
on your side, or in which you took a prominent, part.—A. Yes ; the case relating to the 
wharf property in Mobile I was in from the first in consultation with the counsel. °I spent 
a week or two going over the premises, examining the lines, looking at the property, ascer¬ 
taining what the water front originally was, and made up my notes intending to argue the 
case myself. The case occupied the attention of the court for some months. 'Subsequently 
I asked Mr. Hamilton to take my place in the argument. 

Q. Did you appear in the court in that case at all.—A. I was in the case the whole time. 

I appeared in the court as one of the counsel. 

Q. Did you say a word to the court in any of the various hearings of the case.—A. No; 
there was no occasion for it, for Mr. Hamilton and Judge Campbell—abler lawyers than 
myself—presented the arguments to the court. 

Q. I ask you to name any prolonged case in which you were heard at the bar and in 
which you had the active management of it.—A. I took an active management of that case, 
all except the argument. 

Q. Were you at the bar at all in that case.—A. Yes ; I was there present the whole time. 

I took notes and acted as any attorney would act. I was not present at the final decision 
of the case, but I was present during the whole hearing upon the injunction. 

Q. Were you present when the case was heard upon its merits.—A. When the case was 
heard upon its merits the last time I was not there. But allow me to say that the whole 
merits of the case were involved in the discussion upon the preliminary iniunction; so that 
the discussion upon the merits, which finally came up, was very brief. 

Q. Were the entire merits of the case heard upon the injunction. 

(Question objected to, and waived.) 

Q. Did you receive $10,000 for your retainer in that case.—A. No, not for my retainer. 

Q. For your retainer and fee.—A. I received $2,000, which was $500 less than that of other 
counsel, for my retainer, and subsequently $8,000 for my services, which included not only 
my services in Mobile, but in Washington, where I was nearly two months. J 

Q. The contract was made for your services at the time when you were first emnloved 
was it.—A. Yes. J ’ 

Q. Now, was there any idea or supposition at all, when you were employed, that the case 
was ever going to connect itself with any consideration of the convention at all.—A. No 


309 


Q. Tlieiefoie youi visit to Washington was not in consideration when you were em¬ 
ployed. A. \\ hen I was employed it was to see the case through to the end, whatever 
might occur. 

Q. But theie was no idea in ttie mind of anybody at the time that the question was ever 
going to come up in a political body. A. .That I know nothing about. I was employed, as 
eveij attorney is employed, to attend to the case and see it through, whatever might occur. 

Q. \ou weie not theie at the final argument ot the case.—A. No; I was not an attorney 
in the case at that time. 

Q. State how you received the $8,000; who paid you the last sum which you received for 
your services.—A. The $8,000 came in a draft—I think from Mr. Worrall. 

Q. Will you please state by whom that draft was drawn, and upon whom.—A. I cannot 
tell you, because I do not recollect; but I could point out the bank, if I were in New York, 
where I got the money. I cannot remember who drew the check. I think Walsh, Smith 
&. Co. drew the check. It was a check upon New York—either upon the house of Walsh, 
Patrick & Co., of New York, or upon some bank. At any rate, I drew the money from the 
bank. 

Q. What was the amount of the check.—A. The amount of the check was some $3,000 
or $4,000 above the $8,000. 

Q. Where did the $3,000 or $4,000 come from.—A. The check was brought to me by 
Judge Busteed’s brother. His statement to me was that Worrall sent the $8,000 which 
belonged to me, and some few dues which the judge had in Mobile in bank; that they were 
put in one draft. 

Q. How much of that money did you pay to the judge or his family.—A. I took out my 
$8,000 and handed over the balance, whatever the sum was, which I do not precisely recol 
lect,, to the judge’s brother. The judge was sick at the time. 

Q. What portion, if any, of the $8,000 did you pay to the judge, to his family, or for 
their benefit.—A. I never paid to the judge, his family, or for his benefit, any of the $8,000, 
in any way, shape, or manner. 

Q. Did you ever read the answer in this wharf case.—A. I think I have. The answer was 
put in, however after I came from Mobile; but I think I read it over in looking over the 
proceedings in the pamphlet. But I was not concerned about the answer; I had nothing to 
do with that at all. I should say in this connection, that Worrall gave Waring his receipt 
for this $8,000, and Waring came to New York soon after and asked me for my receipt, that 
he might give Worrall back his receipt; I gave him my receipt. Waring was the agent of 
the wharf owners and the gentlemen who employed me. 

Q. You say you do not know whether you read the answer or not.—A. I am not positive— 
I think I have. 

Q. Did you not meet the counsel at night before this bill was filed, and give them the 
assurance that if the case was filed in Judge Busteed’s court he would decide it in their 
favor.—A. Never anything of the kind ; such a word never came out of my mouth iu that 
case or in any case. 

Q. Were not John T. Taylor and Dargan the counsel for the complainants.—A. They 
may have been ; I had no conversation with them on the subject; I did consult with Mr. 
Stewart upon it. 

Q. Did you have any consultation as to the form the bill was to take.—A. I was present 
with the counsel when the consultation was had upon the subject. I went with Waring 
over the premises, and inquired into all the facts in the first instance, before any proceedings 
were taken. 

Q. You speak about going over those premises and inquiring into all the facts ; was not 
the main fact as to the original high-water mark, and could not every man &nd woman in 
Mobile tell you that the original high-water mark came up near the Battle House.—A. That 
I cannot say. I never consulted every man and woman in Mobile about it. 

Q. Did you have any trouble in finding out where the original high-water mark was.—A. 
The man who went over the premises with me was in the office with the United States gov¬ 
ernment land agent, and was able to point out the whole thing. Whether other people were 
or not, I cannot say. 

Q. Did you find any difficulty in having the inquiry answered, as to how far up the street 
the original high-water mark came.—A. Not with him. 

Q. It is Royal street, Water, Commerce, and Front streets, is it not.—A. I cannot remem¬ 
ber distinctly; It is nearly two years since I went over the premises. 

Q. Before you get to the river there are three streets parallel with Royal; is not Water 
next above Royal.—A. That I cannot remember. 

Q. Did you have any difficulty in finding the original high-water mark a short distance 
above Water street.—A. That I cannot tell you. 1 know the history of the title was a very 
long story; it took this gentleman several days to tell me about it. 

Q. It was a very long story to find out what was between the ebb and flow of the tide in 
Mobile.—A. Yes ; that was one of the very things in dispute in this case. 

Q. Was It the question presented in this case whether these wharves were in the original 
bed of the river, or whether they begun at high-water mark.—A. It was not claimed that 
they were in the original bed of the river, but the question was whether they were between 


310 

high and low-water mark. This ground in front, where it was filled up, was original y 
marshy ground, where the tide set back. 

Q. l)o you mean that a wharf for purposes of navigation was built between the ebb and 
flow of the tide.—A. I do not mean to say where they were built. I went over these 
premises, and the ground was pointed out to me where high and low-water mark used to be; 
but there has been a great deal of filling in there, and precisely whether your wharves were 
built between high and low-water mark, I do not know. I know that the business part of 
the town is between what was originally the ebb and flow of the tide. 

Q. Did you appear for the United States in the case of the seizure of 662 bales of cotton.— 
A. I think I did ; but I am not positive. 

Q. If you did, who employed you.—A. If I did, I appeared either at the request of the 
district attorney or of the government. 

Q. Did you ever get any letter from any government officer upon this subject; if so, from 
what officer.—A. No; I never had any letter from the government. The judge had a letter 
in which the Secretary of the Treasury desired that he would have some counsel to appear, 
as there was no district attorney. I think there was such a letter, and on the strength of 
that I appeared as counsel, though I charged the government nothing. 

Q. Did you make a report to the government of the case.—A. The judge reported to the 
government. I had no correspondence at all with the government upon the subject. 

Q. Did you appear for the government in the case of the seizure of the 239 bales of cotton 
claimed by the Planters’ factory.—A. I think I did. 

Q. By what authority did you appear.—A. If I appeared, it was by the same authority as 
I have stated; either at the request of the district attorney, to assist him, or at the request of 
the Secretary of the Treasury, as expressed in his letter to the judge. 

Q. Did you keep the letter from the Secretary of the Treasury.—A. I did not have any 
myself, as I have told you. 

Q. Did you see the letter of the Secretary to the judge, asking him to employ somebody.— 
A. Yes. 

Q. Was it from the Secretary of the Treasury.—A. I think it was from the Secretary of 
the Treasury. 

Q. The argument in the demurrer, or the argument upon the preliminary proposition to 
grant an injunction in this wharf case, was begun at the close of one week and put over till 
the following Monday, was it not. — A. My recollection is that the case occupied three or 
four days. It took a long time to read the papers. 

Q. Do you know whether I made an argument in the case on Saturday.—A. I cannot say. 
I do not remember. 

Q. Do you know whether the very next day Judge Busteed, while the case was under 
argument, went upon an entertainment of Moses Waring, who was contesting the case— 
upon a steamboat excursion to Point Clear and a dinner.—A. I recollect you, representing 
the other side, and Judge Busteed, and I think all the counsel in the case, went on an excur¬ 
sion to Point Clear, and that you had the lumbago. 

Q. Do you know whether I was invited in the name of the captain of the boat, and that it 
was entirely concealed from me whose entertainment it was.—A. 1 understood that we were 
all invited by the captain. 

Q. Did you not know that it was an entertainment gotten up by Moses Waring.—A. I 

did not. 

Q. Was he the chief man who presided with Judge Busteed at the dinner.—A. He may 
have presided ; I do not remember that this was the fact. 

Q. Did he pay the whole bills.—A. I do not know. 

Q. Did you pay any tavern bills.—A. No, I did not; and I don’t think you paid any. 

Q. When I found who had gotten up the entertainment, I insisted upon paying my bill, 
but they would not receive it; Moses Waring paid for the dinner, did he not.—A. 1 don’t 
know. 

Q. The man who attended in the dining-room and who cried out his bill of fare was a 
noisy sort of a man, was he not.—A. Yes ; that was not a very uncommon thing, however, 
down there. 

Q. Do you recollect that Judge Busteed asked him for cream cakes and the man’s reply 
was that they had given out, but that he had some supply set aside for the judge, for War¬ 
ing had told him to pay particular attention to the judge.—A. No, I did not hear it. 

Q. Do you recollect when I concluded my argument upon that Saturday and the judge 
retired ; his chambers were just back of the court-room, were they not.—A. Yes. 

Q. Do you recollect that he and Moses Waring walked right through together and went 
into his chamber when I concluded my argument.—A. I do not recollect any such thing. 

Q. How many times did you ever see Moses Waring in the judge’s room.—A. I never 
saw him in the judge’s room while this case was pending. 

Q. Do you know of various presents of liquors which were made to the judge.—A. I do 
not. 

Q. Do you know whether llesse, who had been a partner of Waring’s for m’any years, 
and Moses Waring sent the judge some very fine sherry wine.—A. No; Ido not know of 
either of them having sent it. 


311 


Q. Just about this time there was an uncommon collection of liquors in the judge’s room, 
was there not.—A. Not that I saw ; not as much as I saw in the offices and private houses 
of men generally in Mobile. 

By Mr. Eldridge : 

Q. Do you know of Judge Busteed receiving any presents while he was on the bench in 
Mobile or in Alabama.—A. 1 lie only present I ever knew ot his receiving was, I saw a 
couple baskets of champagne ; where they came from I do not recollect. 

Q. Have you ever known ot his receiving auy presents of money from any of the officers 
of the government or from any suitors in court.—A. No ; not a dollar to my knowledge. 

Q. Do you know of his ever having received them from any information from him.—A. No. 

Q. Have you ever heard anything relative to a present made to the judge by General 
Spencer.—A. Since I have been here. I was in Alabama only a short time in 1867. My 
experience in Mobile dates back to 1865 and 186b; I was there a couple of weeks in 1867. 

By Mr. Smith : 

Q. Why, if you participated in the consultations about this bill and all that, did you not 
sign it as counsel with the other attorneys.—A. Only the attorneys signed it. 

Q. I understood you to say that you were an attorney ; were you not one of the attor¬ 
neys.— A. No ; I was not one of the attorneys. I said I acted in the capacity of an attor¬ 
ney. I did not sign any paper. 

By Judge Busteed: 

Q. I understood you to say that you had not told the counsel in this wharf case at an 
alleged secret meeting that if the case was brought in Judge Busteed’s court he would decide 
it in their lavor. Did you ever speak with Judge Busteed in relation to any case pending 
before him as judge ; and if so, what was the case.—A. The only case in which 1 talked with 
Judge Busteed and endeavored so far as I could to convince him in reference to the decision, 
was in the case of the test oath for lawyers. I was not employed in it at all in that case, which 
was brought on, I think, a month or six weeks after I arrived in Alabama. I went into court 
and listened to the arguments upon the question of the constitutionality of the test oath. It 
was a case which concerned all the lawyers in Mobile. I thought that the law was uncon¬ 
stitutional. After the arguments I had occasion to talk with the judge about it and told 
him what I thought of it. I know after my first interviews with the judge he was decidedly 
of the impression that the law was constitutional. I thought if the law was unconstitutional 
I was disposed to aid these men, to give them an opportunity to earn their living, and I 
looked into the case very carefully. I listened to the arguments of Mr. Smith, who is here, 
and of Judge Campbell, and I gave the judge what views I had upon the subject. I was 
not interested in the case. I did not know Mr. Smith at all; I had not a speaking acquaint¬ 
ance with him. That is the only case in which I advised the judge anything in reference 
to his decision before it was rendered. 

Q. In your belief and judgment, what difference would it have made in your pecuniary 
receipts in Alabama if the judgment of the court had been in favor of the constitutionality 
of that law of Congress.—A. It is impossible to calculate. 

Q. Would it have been very large or otherwise.—A. It must have been very large, neces¬ 
sarily, because there were no lawyers there who could practice in the courts: but I con¬ 
scientiously thought that this law was unconstitutional. I had occasion so to say to the judge, 
and I presented my reasons for it. 

Q. What was the amount of property involved in this wharf case in Mobile.—A. Just 
about $1,000,000 as they estimated it. 

Q. What were the counsel fees which were agreed to be paid to Robert H. Smith on the 
other side of this wharf case.—A. The resolution which was passed by the city council I 
believe appropriated $50,000 to four of the counsel and gave them each a retaining fee of 
$’2,000, the same as I got. That is my recollection about it. The $50,000 was for them 
altogether. 

Q. Before you went to Alabama, what business were you engaged in.—A. I was up to 
1861 engaged in the practice of the law ; I had been for about 10 or 12 years. 

Q. And after 1861 what business were you engaged in.—A. I w r as surveyor of the port of 
New York for about three years. 

Q. Before 1861 had you been engaged as counsel in any case of auy pecuniary magni¬ 
tude.—A. Yes; one case involving $1,000,000; a case precisely similar to this case, involv¬ 
ing nearly the same questions, growing out of w'hat was called the West Washington market 
property, in the city of New York. 

Q. Did you make any argument in court in that case.—A. I did not. 

Q. Who w T as associated with you as counsel in that case.—A. Charles O’Conor and James 
T. Brady were associated with me in that case. 

Q. What retainer did you get in that case.—A. My retainer in that case, I believe, was 

$ 1 , 000 . 

Q. What fee did you get.—A. The retainer was $1,000 in gold, and I subsequently received 
$6,000 or $7,000 in gold in the same case. I was retained at the request of the controller ot 
the city, Mr. Flagg, and conducted the case at his request. 


312 


Q. Were you in Mobile on the trial of the habeas corpus case of Town.—A. les. 

Q. Who was his attorney. Who petitioned for the habeas corpus for Town.—A. I was his 
attorney. 

Q. What was Town when you was arrested by the “State authorities,” so called, of Ala¬ 
bama.—A. He was sub-agent of the government, I think ; at any rate he was in the employ 
of the government. 

Q. Robert IT Smith appeared and opposed the granting of the writ.—A. Yes. 

Q. Were you present on the day when Robert IT Smith left the court in that case.—A. 
Yes ; I was present all through the argument. * 

Q. What was the conduct towards the court in respect of insolence and browbeating.—A. 
He was very insolent—more so than I ever saw a lawyer in court in my life. He pronounced 
the decision of the court as the “mockery of justice.” I recollect that expression. 

Q. What was the manner as distinguished from what he’said.—A. His manner was that 
of a man who undertook to bully and browbeat the court. 

Q. You say you were concerned, you think, in this proceeding of the United States vs. 
239 bales of cotton—Nunn & Thompson.—A. I think I was requested to look after it. 

Q. Did you as a matter of fact make an examination of that, cotton as it lay in the ware¬ 
house.—A. At the request of the marshal, John Hardy, to whom some complaint had been 
made about the condition of this cotton, I went and made an examination. Hardy was com¬ 
pelled to go to Montgomery to summon the jury for the middle district. I went and looked 
at the cotton. I found the bales, a great many of them, broken up, the cotton scattered ail 
round, and several young ones picking up the cotton. It was l} r ing in the warehouse. I 
do not recollect whose warehouse it was. The black boys were coming in and helping them¬ 
selves. There was a general stealing of it. 

Q. Did you make an actual examination of any other cotton that was the subject of judi¬ 
cial decision by the court.—A. I went to look at this Natchez cotton to see if I could dis¬ 
tinguish the government maiks on what was claimed to be the government cotton. 

Q. What was the result of your investigations in that case.—A. Some of the bales I could 
identify, and on others it was apparent that the marks had been obliterated after the cotton 
was taken from the ships and put in the warehouse. You could see where it had been done. 

Q. Do you know Peter Hamilton, an attorney, of Mobile.—A. Yes. 

Q. Were you present in court upon the trial of the motion to set aside a sale made by the 
United States marshal in which Peter Hamilton appeared to oppose.—A. Yes. 

Q. Was you present during any difficulty between Peter Hamilton and the court in that 
case.—A. Yes. 

Q. State what Hamilton’s manner to the court was upon that occasion.—A. Well, it is 
very difficult to describe it. 

Q. Is it so difficult that you cannot do it. Will you essay the description.—A. The best 
description I can give is that of a man attempting to bully the court, to insult the court in 
every possible manner, and yet to keep within bounds so as not to be committed for contempt. 
That is about the idea I got of it. 

Q. Did you know Jacob Wilson, who was in Alabama.—A. Yes. 

Q. Who took him to Alabama originally, in 1865.—A. I took him down with me. 

Q. Was he ever Judge Busteed’s body servant.—A. No, sir. 

Q. How long and how well did you know Jacob Wilson before you took him to Ala¬ 
bama.—A. Jacob Wilson was first introduced to me by Frederick A. Coukling, of New 
York, brother of the senator, and Hon. Isaac Dayton, who is now one of the registers in 
bankruptcy. They asked me to appoint him to a position, which I did. I found him incom¬ 
petent to fill it and dismissed him. They came down upon me again in his behalf, when I 
found something else for him to do and gave him a place, where he finally proved to be very 
useful and turned out to be a most competent officer as night-watch in the custom-house. 

Q. You had the opportunity of determining the honesty of Jacob Wilson, did you.—A. 
Yes. 

Q. And what is your opinion of his honesty.—A. I think he is truly honest. Before he 
came to me he had been employed by the Hamburg line of steamers and had entire charge, 
nights, of their ships and everything on board their ships. 

Q. Has he been in circumstances where he could have taken money from you if he were 
dishonestly disposed.—A. Certainly; he had every opportunity, if not of taking money, of 
taking things of great value, and I never heard a complaint against him in my life. 

By Mr. Smith : 

Q. You say you examined the 239 bales of cotton.—A. Yes. 

Q. In what warehouse.—A. I cannot remember the name of the warehouse. 

Q. What was the date when you examined it.—A. It was in the afternoon; I think it 
was some 3 or 4 o’clock. 

Q. In what year was it.—A. That I cannot tell you. It was about the time the cotton 
was removed. I know I reported back that the cotton ought to be put somewhere in a place 
of safety, instead of being allowed to remain there and be stolen. 

Q. When I told the judge his proceeding was a mockery of justice, state what that pro¬ 
ceeding was to which I refer.—A. He had just decided some question which was raised. 

Q. What was it.—A. I cannot tell you. 


313 


Q. W as it not when be had called upon a man by the name of May to answer whether a 
certain paper was made by him, and when the witness was looking at it did not the judge 
jerk it from him and put it behind his back and tell him to answer the question.—A. I dTd 
not see any such performance as that. 

Q. Do you recollect me saying that a person could not tell what the paper was unless he 
could see the paper, and the judge ordered me to take my seat.—A. I recollect that the judge 
ordered you to take your seat, when you said that such a thing was a mockery of justice. 

Q. Was not the judge’s reply to what I had said precisely this, “I won’t takesuch lan¬ 
guage as that from any lawyer,” when he ordered me to take my seat.—A. When you made 
the expression “ mockery of justice,” the judge told you to take your seat and said nothing ; 
you turned and Avent out of the court-room. The judge made no remark, but immediately 
after the court adjourned entered an order denying you the privilege of practice in his court. 

Q. You say you did not see the paper handed to May, and when he undertook to look at 
it, that you did not see the judge put it back and say he could not look at it.—A. I never 
saw the judge do such a thing as that in my life. 

Q. What were the marks which you regarded as the go\ T ermnent marks which you say 
were obliterated.—A. The mark “ U. S.” Avas upon the bales. 

Q. By Avhom had the mark “U. S.” been put there.—A. I do not knoAv. 

Q. Hoav many bales did you find there ; and how many were finally determined to be of 
the cotton that a claim was set up for by the United States.—A. As I said, the marks had 
evidently been obliterated upon some of the bales. All those which could be distinguished ; 
I think there Avere about 115 or 120 bales. 

Q. Ascertained to be of this lot that was seized.—A. I think there were that many that AA r e 
could discover the marks so as to tell that the letters “U. S.” had been upon them. 

Q. It was of the Price Williams cotton that the claim of the United States rested upon.— 
A. Yes. 

Q. Do you knoAv whether more than 17 or 27 bales of that Avhole lot of cotton which Avere 
included in the decree of the judge could be distinguished by the mark “ U. S.” upon 
them. —A. My recollection is very clear that over 100 were marked “ U. S.” 

Q. Do you knoAv hoAv much of that cotton, or the proceeds of it, Judge Busteed finally 
retained in the court for litigation.—A. I was present when the judge decided the question. 
He said a fraud had been perpetrated upon the same, and he would retain in the registry of 
the court sufficient to cover the value of that cotton. 

Q. Did.he mean a fraud in the default Avhich had been previously taken.—A. A judg¬ 
ment by default had been given in favor of Price Williams and Garner. 

Q. Did General A. Campbell file the libel upon which the default was taken.—A. Ido not 
know whether he did or not. He did not take a default; I knoAv not; that Avas from the 
other side. 

Q. Why if you were asserting the claim for the United States did you suffer the default 
to be taken.—A. I Avas not in the court. I knew nothing of the proceedings in the case ; I 
took no part in the case then at all. It Avas only after this fraud was committed that I was 
requested to appear in the case. 

Q. Was Worrall United States attorney at the time.—A. I do not remember Avhether 
Worrall was United States attorney or not at that time. I did not appear in this case until 
after this default was taken, and therefore I could not know about what took place in court 
at the time it was taken. 

Q. Was Judge Busteed’s manner all proper to Mr. Hamilton and myself at the time, and 
which has been referred to.—A. I think so, until after you commenced to insult him. 

Q. Did not the judge insult me all through the previous day. He did not order me to sit 
down and get up.—A. He may have ordered you to sit down, and I thought he Avas justi¬ 
fied in doing it from the manner in Avhich you talked to the court and conducted yourself. 
It was a very insulting and impudent manner, and more so I haA r e never witnessed, and I 
have seen a good deal of impudence in the courts of New York. 

Q. What did I say to the judge which you considered insulting and impudent. —A. I can¬ 
not say Avhat you said, except 1 remember your saying that the decision lie had made Avas a 
mockery of justice; Judge Campbell was present at the time and saw it too. 

Q. You think Jacob Wilson is a very honest man.—A. I do. 

Q. Was Jacob Wilson always about the court.—A. Not always. 

Q. Was the general speaking.—A. No; he was away from the court a good deal. 

Q. Did not the judge order Wilson to bring ice and mix his liquor, as a master would 
order his servant.—A. No; I never saw him do that. He had a negro to do that, that 
waited upon the court and brought ice. 

By Mr. Semple ; 

Q. Were you in Montgomery, in the spring term of 1867, in the district court of the United 
States.—A.Yes. 

Q. Do you remember having a conversation with John D. Morgan in relation to an appli¬ 
cation to Judge Busteed for a writ of habeas corpus to take a man out of the possession ot the 
military authorities who had arrested him under the reconstruction laAvs.—A. I recollect that 
Morgan came to me in reference to some case when I was sick in Montgomery. You came 


314 

in regard to the same case, I think. You and Morgan, I believe, were associated in the 
case, whatever it was. 

Q. Do you remember telling Morgan that Judge Busteed would discharge a man upon 
application for a habeas corpus. —A. No; I never told him any such thing. 

Q. You never told him that he would.—A. No, sir; he never asked me any question 
which would call out any such remark, and he would be incapable of doing any such thing, 
too, I think. 

Q. You say you did not inform John T. Morgan that the judge would discharge that man.— 
A. No, sir. My principal conversation in reference to the case was with you. 1 will tell 
you what I said. You came and urged me to take hold of that case. You proposed to give 
me a retaining fee if I would undertake the case. General Morgan told me the same thing. 
I declined to accept the retaining fee. 1 told you at the time I was sick that probably I 
could not appear in the court at all, and I said to you, “ If I was able to appear in the court 
I would examine into the case, and it would be time enough for you to pay me your fee if I 
was able to appear.” 

Q. Are you certain that the conversation with me was in reference to that.—A. It was in 
reference to some case. I think you and Morgan were together in the case. It was the only 
case which you talked to me about. 

Q. Then your recollection is distinct that your conversation with me was about the case 
of this man who was arrested by the military authorities, and not about the case of another 
man by the name of Sayre, a civil action in respect to his liability as to some cotton which he 
bad received from the confederate government.—A. I will not say that—that it is the same 
case ; I say the case you talked to me about was the case which General Morgan talked to 
you about; you and Morgan were in the same case; I do not remember what it was, but I 
did not accept any retainer. I did not undertake to have charge of the case, or have anything 
to do with it. 

By Mr. Churchill : 

Q. Were you surveyor of the port of New York at the time you left for Alabama.—A. No ; 
I went out of that office a year before. 

Q. At whose suggestion did you go to Alabama.—A. At my own suggestion; in the first 
place, in the fall of 1864 I had been upon the political stump ; I had taken a very bad cold 
and cough which continued from that time till the fall of 1865. The judge was going down 
to Alabama. I told him I would like to go and spend a winter there at Mobile. I had no 
intention then of going to practice in Mobile except to get the court started, as there were no 
lawyers there who could practice; I went for my health. 

Q. Have you been a very intimate friend of the judge.—A. I have been a very intimate 
friend of the judge from 1854 down, a very intimate friend. 

Q. What was the amount of fees received by you during your residence in Alabama in 
your regular business.—A. I had this wharf case, upon which I spent some two months 
in Washington ; a case for Clafliu & Co., in which I received the usual fee, 10 per cent, 
upon the amount collected ; and then the Towne case, in which I had $100. These were all. 

Q. Amounting to how much in fees.—A. Including the $8,000 which I received in New 
York, and a part of which was for services in Washington, my fees altogether amounted to 
perhaps $15,000; not much more than that. These cases which I have named were the only 
cases in which I received a fee. In the Mott case I received no fees. 

Q. You were employed as counsel in the Mott case.—A. Yes. 

Q. And made the motion that the money should be paid into court which was in the hands 
of Elmore.—A. It was in some banking house there, but Elmore claimed a lien upon it. 

Q. Did you perform any service in that case except making the motion.—A. I did not. 

Q. Who drew the papers in that case.—A. I drew them myself, and Mott copied them. 

Q. Did not Mott draw the papers himself.—A. If Mott wrote them I dictated to him what 
to write ; and he also made copies ; my services in the case were making the motion ; imme¬ 
diately after the order was made I was sued in a joint suit with Mott and the judge; in that 
suit I was compelled to get security, and I had to employ counsel; Mott did nothing at all 
towards the defence; the counsel argued the case for me first in the supreme court before a 
single judge; it then went to the supreme court in full bench, and it was subsequently 
appealed to the Supreme Court of the United States; the counsel I employed was James Q. 
Smith. 

Q. You were all three sued together; you defended for yourself.—A. We were all sued 
together, and I defended for myself and Mott. 

Q. Were you not paid $1,500 as your fee in that case where you made the motion.—A. I 
was not: I never received one cent. 

Q. What became of the fund of some $3,000 which was left in the court.—A. Mott had some 
ransactions with Stanwood, as I understood, and assigned it all to Stanwood as security ; 
this transaction has never been closed ; consequently I have never received any fee at all. 

Q. Was there any distribution of that money.—A. No; the money is in Stanwood’s 
hands; they have never.settled their differences ; I understand a litigation is now going on 
between them in Alabama, in reference to that matter. 

Q. Was no part of that money paid as fees of the court.—A. Not that I know of; a por¬ 
tion was paid to the counsel adverse to Mott. 


315 


Q. Did you ever receive anything for your fees from Stamvood.—A. I never did. 

Q; Do you not remember to have seen Mott subsequently in New York at the time when 
the judge aud Stanwood were also present in the city of New York.—A. Mott and Stanwood 
were not present when I saw the judge ; they may have been in the city; I do not know 
whether Stanwood was in the city or in Boston. 

Q. Was it not claimed by Mott at the time that of that money $1,500 had been paid to 
you for your counsel, and $1,000 or more had been paid to the clerk of the court as fees.— 
A. Not that I heard of; I never knew that he made any such claim at all; I notified Stan- 
wood that I should make a claim against liiip ; he informed me that there was a litigation 
growing out of the transaction with Mott, and if anything was left he would recognize my 
claim. ° 

Q. An order was made in court to pay $300 in gold to Elmore, and $200 in gold to Rice, 
Semple and Goldthwaite, was there not.—A. I think the order was for more than that. 

Q. I mean the original order as announced verbally in the court.—A. I cannot say. 

Q. Was it not modified immediately to $500 and $300.—A. When the original order was 
drawn and signed it was, I think, for $500 and $300, though I cannot say; I recollect the 
judge remarking on the bench that $250 or $300 he thought quite sufficient; Mott was 
present and expressed his satisfaction at the order when it was written aud signed. 

Q. Was that, as you understood then, the judgment of the judge as to the fair compensa¬ 
tion of these men for their services in the case.—A. The judge did not give it as his final 
decision, but he put the rest of the money into the hands of the custodian—Judge Chilton— 
and the question of their future fees was to be determined afterwards. 

Q. Did you not understand from the judge afterwards that he had allowed $600 additional 
to one of these parties, aud $200 to the other.—A. I know nothing about it; I was not in 
Alabama ; I never heard whether an additional order was made for the payment of fees out 
of the fund. 

Q. So far as you know does that entire fund remain in the hands of Stanwood.—A. I 
believe it does ; he told me he had an assignment of it from Mott; and I think Mott told me 
the same thing. 

Q. Did ever any part of any of the moneys you received for business arising in Alabama 
go to Judge Busteed or to any member of his family, or to any person for his or their bene¬ 
fit.—A. When I went to Alabama I lived in the house with Judge.Busteed, and frequently— 
when I wanted to give a dinner party, or if I wanted anything special to eat—I would give 
his daughter money to go to market; I frequently did that; but never with any under¬ 
standing or agreement about it; the money which I gave I gave to his daughter, who took 
charge of the household, for things to make us comfortable in the house ; with that exception 
I never gave a cent to the judge or to any member of his family, or to any person for his or 
their benefit; I never made a present to Judge Busteed, except in company with eight or 
ten prominent men in New York, among whom were George Opdyke, General Spinola, and 
several others, whose names are engraved upon the watch ; we made him a present of the 
gold watch and chain which he wears; that is the only present I ever made him; this was 
before he went to Alabama. 

Q. Did Judge Busteed or any member of his family, or any other person for his or their 
benefit, ever receive any money from Jacob Wilson, or any portion of any money he ever 
received from any business arising in Alabama.—A. Not that I ever heard of; or according 
to the best of my knowledge and belief; I have heard directly to the contrary from Wilson 
several times ; I have asked him several times. 

By Mr. Smith : 

Q. Did James M. Tomeny pay you a fee of $3,000, in the city of New York.—A. No. 

Q Did he ever pay you any sum.—A. He did pay me a retaining fee in his case of $500. 

Q. How much more did he promise you.—A. He promised me $3,000. I ought to say 
that my arrangement in the case was with the Honorable S. S. Cox, who desired me to take 
charge of the case. 

Q. Did you find any difficulty in getting the case dismissed.—A. No, sir. After Tomeny 
had settled his accounts with the Treasury Department and got directions from the Attorney 
General to the district attorney at Mobile to enter a nolle prosequi in the cases, I had no diffi 
culty. 

Q. Do you know whether, before he saw you, or not he had any order for the dismissal of 
the case.—A. No ; he had no order at all. He was frightened about his situation. He came 
to New York and, with Mr. Cox, I went over the case and had a long consultation. He 
came here to Washington; I was with him a considerable time. He settled his accounts 
with the Treasury Department entirely to their satisfaction; and I believe the Secretary of 
the Treasury requested the Attorney General to instruct the district attorney at Mobile to 
enter a nolle prosequi. The district attorney then was Martin. 

By Mr. Semple : 

Q. Did you ever pay James Q. Smith for representing you in the circuit court of Mont¬ 
gomery, upon a motion to transfer the suit to the circuit court of the United States.—A. I 
gave Smith $250, I think, in the summer of 1867 or 1868. 

Q. Was it paid on account of services rendered or to be rendered in that case, in the 


316 


circuit court of Montgomery county.—A. I gave it to him because he was retained by me 
in the case. lie had presented no bill to me. It was the case of Elmore, Keyes and Mor- 
rissett vs. Andrews, Mott and Richard Busteed. 

Q. The motion was decided against you in the circuit court of Montgomery county, was 
it not.- A. I understood it was. 

Q. There was then an appeal to the supreme court of Alabama, was there not. And the 
supreme court of Alabama decided the case against you.—A. Yes; one judge dissenting. 
But this was not upon the merits, but upon a motion made under the law of Congress, of 
18G7, authorizing a removal of causes from the local courts to the courts of the United 
States, where one of the parties was a non-resident. It was as clear a case as was ever pre¬ 
sented in court. That motion was not upon the merits of the case. You subsequently 
backed out of the case; you were one of the parties interested. 

Q. Was there an appeal taken to the Supreme Court of the United States in that suit.— 
A. Yes. 

Q. Was the record ever filed in the Supreme Court of the United States in that suit.—A. 
The record is here in the Supreme Court. I think it is not docketed. 

Q You understood the rule requiring deposits before cases are docketed in the Supreme 
Court. Did you make any deposit there.—A. I did not; because I understood you had 
Avithdrawn the suit. 

Q. The original suit then having been dismissed, the appeal to the Supreme Court of the 
United States was unnecessary. And you did not docket the case at all.—A. I never knew 
whether the case had been dismissed formally or not. I understood that you had given 
notice that you would discontinue it. I have not seeu Smith since. I know the record is 
in the Supreme Court, because I have seen it in the clerk’s hands. I have not made any 
deposit, nor do I intend to until I see that it is necessary. I was asked if I had not received 
$3,000 from Tomeny, and I answered that I had received a retaining fee of $500. In 
addition to that, Mr. Cox paid me about $1,800 in the two cases. This I ought to have 
mentioned. And the balance of my fee is still due. 

By Mr. Eldridge : 

Q. You said at the time the $8,000 was sent to you in New York it was sent in a draft for 
some $3,000 or $4,000 in addition to the $8,000; and you said that that Avas some money 
Avhich Judge Busteed had in Alabama which he wanted sent to New York.—A. Yes. 

Q. Where did Judge Busteed get that money.—A. I understood that a portion of it Avas 
interest upon his government bonds ; he had some $30,000 government bonds; that his 
quarter’s salary was in it; and, I think, some money Avhich he took down there Avitk him. 

Q. Did he collect the interest upon his bonds down there.—A. I believe he did. I so 
understood. 1 do not know. I took out my $8,000 and handed the balance over to his 
brother. 

Q. Do you know of Judge Busteed receiving money at any time while he was in Ala¬ 
bama, except the money Avhich was due to him for his salary as judge, and the interest upon 
bonds or other securities which he carried with him to Alabama.—A. I do not know of any¬ 
thing else, except that he bought some stock in one of the railroads there and subsequently 
sold it. 

Q. In what railroad.—A. It Avas the railroad running through Government street; ahorse 
railroad. 

Q. Do you know of his carrying bonds Avith him to Alabama.—A. I do not. 

Q. Do you knoAv of his receiving interest upon them, to your own knowledge. —A. I only 
knoAv what his brother said to me at the time. 

Q. In this conversation, at the time the draft Avas handed to you, did he tell you hoAv 
Judge Busteed was entitled to the money.—A. He said that Worrall had sent the money; 
that Worrall had given his receipt to Warring for the $8,000 which belonged to me, and 
that Worrall wanted my receipt so that he could get his oavu back. 

Q. Did Judge Busteed’s brother tell you, at the time, that the balance of the draft belonged 
to Judge Busteed.—A. No ; he did not tell me who it belonged to, at the time. 

Q. Did you know, at that time, who it did belong to.—A. I supposed it belonged to 
Judge Busteed. 

Q. What made you suppose that.—A. I did not know Avho else it could belong to. It 
Avas brought to me by the judge’s brother. I had no supposition that it belonged to any¬ 
body else. 

Q. Who Avas the draft drawn payable to.—A. I think the draft was payable to Walsh, 
Patrick & Co. The judge’s name was not on the draft. I drew the money on the draft 
from a bank right opposite to my former office. 

Q. Did you draw the Avhole sum of money.—A. I did. 

Q. How did you draw it if it run to the order of Walsh, Patrick & Co.—A. It must 
have had their endorsement, of course. 

Q. How is the fact.—A. I do not remember whether it Tiad Walsh, Patrick & Co.’s 
endorsement. I know the check was in such a condition that I drew the money from the 
bank. It Avas endorsed, I am certain. 

Q. By Avhom. —A. That I cannot tell. I do not remember. I knoAv I got a gentleman 
in Turner &. Colgate’s store to go over to the bank with me, and I got the money. 


317 


Q. You could not lmve got the money there, could you, if the draft had been made pay* 
able to the order of Walsh, Patrick & Company.—A. I think Walsh, Patrick & Company 
kept their bank account there. 

Q. Do you know of Judge Busteed receiving any portion of the costs and allowances in 
any of the government cases where cotton was sold and converted into money.—A. No; I 
do not know of any costs or allowances being made in these cases, anything more than the 
clerk’s and marshal’s fees—the usual costs of court. I never heard of his receiving any of 
these or any other costs or allowances. 

Q. You do not know of Judge Busteed’s receiving any money whatever, through any per¬ 
son litigating in his court.—A. I do not. I have not the slightest evidence of that kind, nor 
have I any supposition that he did. 

Q. Did you and Judge Busteed have any arrangement by which you were to share in the 
money or property you made down in Alabama.—A. None whatever. I had no expectation 
of making any money when I went down there. 

Q. Is there any money now remaining or property growing out of your business in Ala¬ 
bama in which Judge Busteed has an interest.—A. None Avhatever. I have all my fees, 
whatever were collected or whatever is due to me. He has no claim whatever upon them, 
and I have never given him any portion of them. 

Q. How long did you and he live together in the same family.—A. From the latter part 
of November, when I went there, until the February following, I lived in the same house 
with him. 

Q. Did you and he live in common.—A. We ate at the same table. 

Q. Who bore the expenses of the family.—A. The judge paid the expenses of the family, with 
the exception of my giving to his daughter, as I have related, small sums occasionally for 
market purposes. When I wanted something in particular to eat, and whenever I wanted to 
give a dinner, I gave her the money which was necessary. 

Q. How much money do you suppose you gave in that way.—A. I should say, perhaps, 
$1,U00; not far from that. About what I thought my board w r as worth. I calculated to pay 
about what I would have to pay anybody else for my board. 

Q. Did Worrall board there at the same time.—A. Yes. 

Q. Do you know whether Worrall contributed anything towards the expenses of the 
family.—A. I think he never contributed anything at all. I have a recollection of his send¬ 
ing two or three cases of champagne. I think that is all he ever gave. 

Q. Have you and the judge and Worrall frequently talked over this case since this exam¬ 
ination has been in progress. —A. The judge has talked over these charges which have been 
made against him. 

Q. Have you and the judge and Worrall frequently talked over this case during the exami¬ 
nation before the committee.—A. No, sir. 

Q. You have not known what the witnesses had testified here.—A. No ; I had not been 
here until you sent for me, until some two or three weeks since. 

Q. When you were here before, were you informed of any part of the testimony.—A. No; 
occasionally the judge would make some remark about the progress of the case, but not to 
divulge the testimony to me at all. 

Q. Was there any understanding between you and Worrall that the judge’s salary was 
small, and that you and he ought to bear the expenses of the family out of what you made there. 
—A. No ; we never passed a word upon the subject at all. 

Q. And you say now you don’t know of the judge ever receiving any money, excepting 
that which he carried with him and which he earned while he was in Alabama, excepting 
his salary.—A. I do not. I have heard, since I have been here, in relation to a present hav¬ 
ing been made to him by a register in bankruptcy.. 

Q. Who did you hear that from.—A. I heard General Spencer say something about it. 

Q. Did you hear of any other register giving money to the judge.—A. No. 

Q. Do you know, of your own knowledge, or from information from Judge Busteed, of 
any fact tending to show that he ever took a bribe or acted corruptly as a judge —A. I do 
not, and I do not believe he ever did. 

By Mr. Smith : 

Q. What was the date of the check enclosing the $8,000 to you.—A. In the month of June, 
1868. 

By Judge Busteed : 

Q. You have been inquired of by Mr. Churchill as to your dealings with Charles A. Mott; 
are you acquainted with Charles A. Mott’s handwriting.—A. Yes. 

Q. Have you seen him write.—A. Yes. 

Q. Is the'paper now shown you in his handwriting.—A. Yes. 


318 


Judge Busteed read as follows : 

“United States district court, middle district of Alabama. 

“ Charles A. Mott 
vs. 

Robert S. Williams and others. 

“The undersigned, complainant in said cause, respectfully requests his honor Richard 
Busteed to pay to Hon. Rufus S. Andrews, out of the funds in said cause remaining in the 
hands of the custodian thereof appointed by the court, such sum for the services of his said 
counsel (Mr. Andrews) as may be deemed by him—said counsel—satisfactory compensation 
in the premises. 

“CHARLES A. MOTT.” 

By Mr. Churchill : 

Q. Was there not an order for $1,500 to be paid to you.—A. No ; I never asked for such 
an order. In connection with this paper, I will state that I very reluctantly took the case 
of Mott, as I had been very sick, under the doctor’s charge. Mott had been to my bed-room 
day after day, and had stood by me, and he finally insisted upon my getting out of bed and 
going to make this motion. I tried every way I could to avoid having anything to do with 
the practice in the court in Montgomery, and it was at his earnest solicitation that I under¬ 
took it. 


Washington, February 11, 1869. 

David Humphreys sworn and examined. 

By Mr. Semple : 

Question. Were you ever nominated by Chief Justice Chase register of bankruptcy for the 
6th congressional district of Alabama.—Answer. He told me he would nominate me ; I never 
saw the appointment. 

Q. When did he inform you.—A. I think about the middle of January, 1868. 

Q. Was it to fill a vacancy.—A. Yes; to fill a vacancy caused by the death of Judge 
Bingham. 

Q. What is your profession.—A. I am a lawyer. 

Q. When and where were you first admitted to practice as attorney at law.—A. I was first 
admitted at Lancaster, Ohio, in the fall of 1861. 

Q. Were you admitted to practice in the supreme court of Ohio.—A. Admission to the bar 
in Ohio admits the person to practice in all the courts of the State. 

Q. Have you been admitted to practice in any other State ; and if so, where.—A. I was 
admitted to practice in the State of Iowa in 1864, and in 1868 I was admitted to practice in 
the Supreme Court of the United States. 

Q. When was that.—A. In January, 1868—the day I was appointed register in bank¬ 
ruptcy. 

By Mr. Eldridge : 

Q. What do you mean by receiving your appointment.--A. I never received anv written 
appointment. I was informed by Chief Justice Chase that he had nominated me. The Chief 
Justice makes the nomination, and sends it to the district judge for confirmation. 

By Mr. Semple: 

Q. Did you ever apply to Judge Busteed in person to confirm your nomination as register 
in bankruptcy.—A. Yes, sir; I saw the judge myself. 

Q. When was it.—A. In the spring of 1868. Judge Busteed had been wounded at Mobile, 
and it was some three months before he was able to be out. He went to Montgomery, Ala¬ 
bama, and went out into the country to a friend of his, Mr. Nathan Stanwood; and while 
he was there I went up to Montgomery to see him. 

Q. Did you see him.—A. Yes, sir. 

Q. In Montgomery.—A. Yes, sir. 

Q. Can you state the time more particularly than you have done.—A. It was some time in 
the spring of 1868. 

Q. Were the facts relative to your admission to practice as attorney known to the judge.— 
A. I think you could understand the case better if I gave you a statement of all that occurred. 

Q. Please answer the questions as they are asked. What passed between you and Judge 
Busteed. A. I went up to Montgomery to see Judge Busteed while he was staying at Mr 
Stanwood’s. When I arrived at Montgomery I saw Mr. Hardy, who is, I think, editor of 
the Sentinel, and 1 proposed to him to go out to Stanwood’s and see the judge. He told me 
he had just seen Stanwood, and that it was no use to go out. Says he, “There is no use in 
going out; the district is all fixed up, and there will be no other register confirmed.” 

By Mr. Eldridge : 

Q. You were asked the question what took place between you and Judge Busteed.—A. 
About a week after that Judge Busteed came into Montgomery, and I went to see him. The 


319 


first question he asked me was, “Are you a practicing 1 lawyer of the district court of Ala¬ 
bama ? I told him uo, that I had never been admitted. He then asked me, “Are you a 
practicing lawyer in the courts of Alabama?” I told him that I had not been admitted, but 
if he would make the confirmation I would go over to the court which was sitting across the 
way and be admitted in 15 minutes, and bring him the certificate. He said he did not recog¬ 
nize the constitutionality of that court, and would not recognize its certificate. I then told 
him that the clerk and marshal and district attorney of his court were all here, and he might 
call a special term of the court and have me admitted right away. He made no answer to 
this proposition. I then said that there would be a court sitting in Mobile in the course of 60 
days, and that if he would hold the confirmation until then I would be admitted at that time. 
He made no response to this. That, I think, was about all the conversation I had with the 
judge in regard to it at that time or any other time. I saw him every day for about a week, 
but that is the substance of what passed between us. 

Q. Do you mean that this conversation was substantially repeated.—A. Yes, sir; just 
about the same. He gave me to understand that until I was admitted into his court he would 
give no consideration to the matter. 

By Mr. Semple: 

Q. Was anything said in relation to your having been admitted into other courts; and if 
so, what.—A. I informed the judge that I had been admitted in Ohio, Iowa, and the Supreme 
Court of the United States. 

Q. Was any other objection to your confirmation stated by the judge.—A. None that I can 
recollect at the present time. 

By Mr. Eldridge: 

Q. Were you a resident of Alabama at the time.—A. Yes, sir. 

Q. How long had you been a resident of the State.—A. About six months. 

By Mr. Woodbridge : 

Q. Are you a married man.—A. Yes, sir. 

Q. Were your family in Alabama.—A. Yes, sir. 

Q Did you go there for the purpose of taking up your residence in Alabama permanently.— 
A. Yes, sir; I had taken up my residence there permanently—had bought property and built 
a house. 

By Mr. Semple: 

Q. Was anything said by Judge Busteed in regard to your fitness for office.—A. The 
judge said to me, “You don’t want that office; it ain’t what you want.” I think he made 
the remark, “You are qualified for a better office. Why don’t you apply for the district 
attorneyship of the northern district of Alabama? That is a better office : it will pay you 
more ; it is an office that will run you right into the practice here ; it will pay you much bet¬ 
ter than register in bankruptcy.” I told him that I did not know whether I could get it. I 
think he told me that if he would undertake it he could get me the appointment, and he 
informed me he would do it. 

Q. Was anything said about the recommendations upon which you had been nominated 
by Chief Justice Chase.—A. We talked that matter over. 

Q. State what both of you said.—A. I gave the judge a history of how I happened to 
apply for the office. I was the regular nominee of the republican party for circuit judge in 
Alabama. A friend of mine, George E. Spencer, then register in bankruptcy for the 4th dis¬ 
trict of Alabama, came to me and proposed to me to withdraw from the canvass forjudge and 
take the office of register in bankruptcy for the 6th district, which was then vacant; and be 
promised to assist me to get it. He gave me a recommendation, which I have with me. 
General Callis gave me a letter, as did also General Burke, register in bankruptcy for the 5th 
district, and Dr. Cantwell, of Decatur, an acquaintance of Chief Justice Chase. With these 
letters I came to Washington and saw Judge Loughridge, of the House; he gave me an 
endorsement, and got all the rest of the Iowa delegation to sign with him. Senator Harlan 
gave me a letter, and Senator Sherman endorsed Dr. Cantwell. With all these papers 1 went 
to Chief Justice Chase, and he gave me an appointment that day. I told Judge Busteed all 
this. 

Q. Did Judge Busteed, at any time, give you any evidence of his belief that you were a 
good lawyer, a good business man, and an honorable, upright man; and if so, what was it.— 
A. He gave me a letter of recommendation for appointment as district attorney for the 
northern district of Alabama. 

Q. Have you that letter with you.—A. No, sir; I sent it to the Chief Justice, and he sent 
it to the President; I was up there to get it, and Colonel Moore said he would look it up for 
me. 

Q. Had Mr. Spencer been to Montgomery, or was he there at the time you were there.— 
A. I was told that he had been out to see Judge Busteed about two weeks before I came 
there. 

Q. What disposition had been made of the business in Bingham’s district.—A. The busi- 


320 


ness had been divided between the registers of the 4th and 5th districts, Mr. Spencer and 
Mr. Burke. An order had been issued to that effect—at least, I so understood. 

Q. Was your nomination confirmed by Judge Busteed.—A. It was never confirmed, to my 
knowledge. 

By Mr. Eldridge : 

Q. Did you make any other application to him after this interview, either by letter or 
otherwise.—A. After the law was extended I telegraphed to our senators in Washington, and 
wrote them, also, to see Judge Busteed, who was there, and have me confirmed. 

By Judge Busteed : 

Q. You mean the Alabama senators.—A. Yes, sir ; at that time I had been admitted to 
the courts in Alabama. 

By Mr. Semple : 

Q. Did you make any application to Judge Busteed through any other person while you 
were there in Montgomery.—A. As soon as I returned from Washington I knew there was 
no use in my trying to see Judge Busteed myself, as he was critically ill from his wound ; 
but a friend of mine, (I supposed he was a friend; he always talked that way,) Dr. J. Y. 
Cantwell, formerly surgeon with General O. O. Howard during the war, went to see him for 
me. 

Q. Do you know of your own knowledge of any application made by him.—A. He went 
to Mobile- 

Q. How do you know that.—A. He so informed me. 

By Mr. Woodbridge: 

Q. Did you request Cantwell to go there.—A. Yes, sir; I requested him to go there, be¬ 
cause he was a surgeon and was, perhaps, a proper person, as the judge was very ill. Dr. 
Cantwell is living now at Decatur, Alabama; he informed me that he went to Mobile and 
found Judge Busteed very ill. Says he to him: “Judge, I suppose you know what busi¬ 
ness I come here on, but I see you are entirely unable to attend to any business, and I will not 
state it.” He then examined his condition as a physician and left him, and saw Mr. Wor- 
rall and had a conversation with him upon the subject. 

By Mr. Eldridge : 

Q. Did you have any conversation with Worrall.—A. I did, and it was concerning the 
conversation he had with Dr. Cantwell. 

Q. Did he admit or restate that conversation.—A. Yes, sir, he restated a part of it. 

By Mr. Churchill: 

Q. Was anything stated in the conversation you had with Cantwell or with Worrall as to 
the course to be pursued to obtain your office.—A. Worrall informed me the very reason 
why I was not confirmed and why I could not be confirmed. 

By Mr. Semple : 

Q. What was it Worrall informed you in regard to your confirmation.—A. Before I saw 
Judge Busteed I had a conversation with Worrall, who was at Montgomery at the time, at¬ 
tending to the duties of register in bankruptcy. Says he to me: “ So soon as Bingham 
died, Burke, the register in bankruptcy for the 5th district, made application to me for the 
privilege of doing all the business in your district.” 

Q. Was this the first time you saw him.—A. Yes, sir. He continued: “We do not feel 
like giving him all that business; but I have proposed to Spencer that if he would give me 
two counties from his district, and not have any more trouble about those two counties, 

I would divide the business of the two districts between you and Burke. Dr. Cantwell, 
when at Mobile, proposed to employ me as your attorney to get j'our confirmation; and 
after he went back he wrote me a letter saying that it I would undertake the case and would 
put it through, and secure your confirmation, he would pay me a fee not exceeding $1,000; 
$1,000 is just as good to me as to anybody ; I am engaged in the practice of the law, and 
shall make all the fees I can; but my word is up, and my honor is above every price; I am 
obliged to these men, Burke and Spencer, and for no consideration whatsoever can I break 
my word with them.” 

Q. When and where did that conversation occur.—A. At Montgomery, Alabama, on the 
occasion of my first visit there, before I had seen Judge Busteed. 

Q. After you saw Judge Busteed, did you have any further conversation with Worrall.— 
A. No, sir, I never saw Worrall again until I saw him here this morning. 

By Judge Busteed: 

Q. What business are you engaged in.—A. I am writing a biography of members of the 
40th Congress. I am also a temporary clerk in the appointment office of the Po&t Office 
Department, at $100 per month. I was appointed there the 14th of last January. 

Q. Are you now or have you ever been admitted to practice as an attorney in the United 



321 


States district court, or any of the State courts of Alabama.—A. I was admitted to the State 
courts last August, I think. 

Q. In what part of the State.—A. In Summerville, the county seat of Morgan county, 
where I live; I was admitted to the circuit court. 

Q. Is there a circuit court there.—A. Yes, sir. 

Q. Who is the judge.—A. W. B. Wood, I think. 

Q. Was he circuit judge.—A. I think that is what they call him. 

Q. Have you your certificate of admission.—A. I have not; the clerk of the couit told 
me that lawyers coming there from other States simply produced their certificates and an 
entry was made on the record. 

Q. What was the clerk’s name. — A. Wells. 

Q. Did you ever give Judge Busteed any notice that you had been admitted to practice in 
the State courts.—A. I think I wrote him to that effect. 

Q. Where and when.—A. In the latter part of August; I addressed the letter to New 
York city, but I am not positive as to that. 

Q. From the time you left Judge Busteed in Montgomery, in May, 1868, (or whenever it 
■was,) until to-day, you have never seen him.—A. No, sir. 

Q. You say that no other objection was made by Judge Busteed that you recollect, except 
those you have stated. Don’t you recollect that Judge Busteed denied the right of Chief 
Justice Chase to nominate to a vacancy in the office of register in bankruptcy, caused by 
the death of an incumbent.—A. Judge Busteed brought that matter up I think. Says he to 
me, “ There is a question in regard to that matter as to whether the Chief Justice could nomi¬ 
nate in case of a vacancy. There is a case over in Georgia similar to yours. The register 
has died over there, and the Chief Justice has nominated a successor, but the judge don't waut 
to confirm him ;” but, says he, “ that is of no account; the nomination of Chief J ustice Chase 
will be the best recommendation for you and shall not prejudice you.” 

Q. Do you know Doctor Cantwell’s handwriting —A. I think I do. 

Q. Look at the paper shown you and say if you have any doubt about its being his hand¬ 
writing.—A. I think it is. 

Q. Have you any doubt of it.—A. I don’t think I have. 

Q. When you proposed to get a certificate of admission from the State courts, did not 
Judge Busteed inform you that he was not certain what the legal status of these courts was.— 
A. Judge Busteed informed me that he did not recognize their constitutionality. 

Q. Did he refer you to an opinion he had delivered at Huntsville.—A. Yes, sir. 

Q. Do you recollect what that opinion was.—A. It was in regard to the constitutionality 
of the reconstruction laws. 

Q. Do you know whether it was given upon the application of L. Poke Walker for the use of 
Judge Busteed’s court-room.—A. Yes, sir, I think 1 came up on that. 

Q. Did you not tell Judge Busteed that y®u got admitted to the Supreme Court of the 
United States upou the suggestion of Chief Justice Chase, in order to avoid objection that 
you were not an attorney in the United States courts of Alabama.—A. I informed Judge 
Busteed that I had had a conversation with Chief Justice Chase upou that point, and he 
had suggested that I had better, while in Washington, be admitted to the Supreme Court of 
the United States, in order to remove all objections that Judge Busteed might raise to my 
not being admitted to the United States courts of Alabama. 

Q. Did you and Chief Justice Chase anticipate objection upon the part of Judge Busteed.— 
A. He did not. 

Q. How came he to suggest that, in order to avoid objection on the part of Judge 
Busteed.—A. He wauted me to be relieved of all doubt. 


Friday, February 12, 1869. 

David Humphreys recalled and examined. 

By Judge Busteed: 

Question. When did you leave Alabama as your place of residence.—Answer. I have not 
really left there ; I was driven away and forced to get away from there in August, 1868. 

By Mr. Eldkidge : 

Q. What do you mean by saying that you were driven away.—A. I mean to say that one 
night a body of what were called lvu-Klux, numbering, as I understood, 200 men. came and 
surrounded my house, broke in the door, and a dozen of them came in, each with two cocked 
revolvers in his hand. 

Mr. Eldridge. What has that to do with this case? 

Judge Busteed begged that the witness be allowed to finish his statement, which he said 
would be very short, and would tend to bring out a point which he desired to be presented, 
and which he" pledged himself would be found relevant and proper. 

After some conversation by Judge Busteed (aside) with Mr. Eldridge, the witness was 
allowed to proceed: 

They gave me (said he) three days to get away from Decatur, or my life would be torleited 
and I went. I think this was in August, 1868. 

21 B 


322 


Q. Could you go back to live in Alabama now with safety to your life.—A. I could go 
back, and should be willing to go and take the chances, except in northern Alabama ; I am sat¬ 
isfied I could not go back there and live 24 hours. 

By Mr. Churchill: 

Q. Was the congressional district to which you were nominated, in northern Alabama. 

A. Yes. 

By Mr. Eldridge : 

Q. What was the reason assigned for driving you away.—A. There was no reason assigned. 
I had charge of a republican newspaper there ; I was editor and proprietor ot it. 

Q. Was it anything you had written in your paper.—A. Not that I was able to find out. 

Q. Did they make any allegations against you.—A. None iu the world. 

By Mr. Semple : 

Q. There were no charges against your personal character. —A. Not that I have ever been 
able to learn. 

Perhaps I ought to add to what I have said in regard to living in northern Alabama, that 
while 1 do not think it would be safe for me to live in Decatur, Morgan county, no doubt 
there are places in that district in which I could live, for the most loyal portion of Alabama 
is in that district, among the mountain counties of Winston, Marion, Walker, Blount, aud 
Tuscumbia; in there I think I could live. 

Q. Are there persons at Decatur aud Athens who have a personal hostility to you.—A. 
Not any that I know of. 

Q. Why should the political feeling against you at these points be stronger than at any 
other.—A. Because I happened to be living at these places just at that time, aud because 
the political feeling at those places was all on one side. 

Q. Did you leave there, with your family, within the time given you—three days.—A. 
Yes. 

Q. Where did you go.—A. I went back to my old home in Ohio. 

Q. What did you do with your property iu Alabama.—A. I sold it: from the fact that it 
Avould have been destroyed there. 

Q. Did you sell it before you left.—A. No, sir ; I did not sell anything before I left. 

Q. Were you then running a newspaper.—A. Y'es, sir. 

Q. What did you do with that.—A. That I have sold since I have been here in Wash¬ 
ington. 

Q. Did you leave it there when you came away.—A. I left it there. 

Q. Was it issued regularly.—A. It was generally issued with tolerable regularity. 

(^. Did it still continue to advocate republican doctrines.—A. It did. 

Q Have you any knowledge of any fact tending to show that Judge Busteed ever took, 
or offered to take, bribes for any act which he should perform as judge —A. No, sir; I do 
not know anything about it. The only matter about which I have had to do with Judge 
Busteed was in my own case. 

Q. Did you ever tell any one that you could get confirmed in your office by paying him 
the money.—A. No; I think not in those words. I think that I stated this in a conversa¬ 
tion wirh Mr. Worrall, at Montgomery, before he told me what disposition they had made of 
my district. He said to me, “The judges of the district court thiuk that this bankrupt law 
is doing them a great injustice. They think,” says he, “that they are entitled to these fees ; 
that it makes their work 100 per cent, greater; that they really have all the work to do, aud 
the registers act simply as a kind of clerk, and they thiuk they ought to have a good portion 
of the fees, and that the law is doing them great injustice.” 

Q. But did you offer to Dr. Cantwell to retain him as your attorney to precure your confirm¬ 
ation, and to pay him a sum not exceeding $1,U00.— A. I did, as I stated yesterday. 

Q. Did he not decline to do it.—A. No ; on the contrary, he told me positively that $1,000 
was as good to him as it was to any other lawyer; and, if his honor was not at stake, to 

stand up for a division of that district, he would use his influence to have my district left as 

it was, and to have my nomination confirmed. 

Q. But he declined to take your $1,000? He did not take any fee, did he.—A. Yes; he 
declined to take anything. I may have made the remark, and I think I have, that if I had 
taken up Worrall, then at Montgomery, when he informed me that the judges thought they 
were entitled to a portion of the fees, and had made a proposition to him at that time to 
divide the fees with the judge, I thought I would have been confirmed. 

Q. Did you tell Chief Justice Chase that, if you had paid $1,000 to Worrall, you could 
have been confirmed.—A. I think not. 

Q. Did you have any conversation substantially like that with Chief Justice Chase.—A. 
No; I have not seen him and talked with him since he made the nomination. 

Q. Have you not seen him at all since.—A. No, sir; not to talk with him. 

Q. Y r ou say you may have said that, if you bad accepted Worrall’s suggestion to give the 
judge a considerable portion of the fees, you would have been confirmed.—A. I may have 
said that I thought I would have been confirmed if I had accepted his proposal. 

Q. What makes you think so.—A. The mere fact that, without any preliminary conver- 


323 


sation at all, he should converse in that kind of style; that the judges thought that great 
injustice was done to them; that they thought they were entitled to a portion of the fees. I 
understood this, of course, to be an intimation to me that if I would give the judge a portion 
of my fees, I could be confirmed. 

Q. Did he tell you that an arrangement had been made by those two other registers to give 
a considerable portion of their fees to the judge.—A. No, sir. 

Q. In what way did he say his honor was pledged.—A. He said that his honor was pledged 
for the division of the district; that he had told Spencer or written to him that, if he would 
give him two counties from his district adjoining Worrall’s, he would divide my district 
between Spencer and Burke. 

Q. Was it in fact divided between Spencer and Burke.—A. Yes; at that time they were 
doing the business. 

Q. Did you have any conversation with Burke.—A. Yes; he had recommended me for 
the appointment to the Chief Justice, and had refused to recommend me to Judge Busteed. 

Q. What reason did he assign.—A. That I had taken part against him for Congress in 
behalf of Judge Callis, the present member. 

Q. Was that the fact.—A. It was. 

Q. Was that before or after his recommendation of you to Chief Justice Chase.—A. It was 
after. I had been pursuing the even tenor of my way. I had been in favor of Judge Callis 
all the time. 

Q. Did he know that at the time he recommended you to Chief Justice Chase.—A. I think 
he did. 

Judge Busteed read the following letter, (which had been referred to in the examination 
of the present witness yesterday,) viz : 


“ Decatur, Alabama, June 30, 1868. 

“Dear Sir: Reached home safely. Had expected to have seen you before I left. Presume 
you received my note. I have learned since my return that Judge Posey was a member of the 
secession convention, and that he has acted as circuit judge since the war, or during the war. 
My informant could not say whether he was appointed after the surrender or was elected 
before. The fact is certain, so I am informed, that he voluntarily refused to take the regis¬ 
tration oath, and as the test oath is more severe, of course he could not take it. I am 
authorized by Mr. Humphreys to say that, if you will act as his attorney and secure his 
speedy confirmation, that within 60 days after such confirmation he will forward your fee in 
any sum not to exceed $1,000. With the nomination of Judge Chase before you it can easily 
be done, and I am well convinced he is the only applicant that can take the test oath with¬ 
out perjury. 

“ The Alabama Republican and North Alabamian are the only really republican papers in 
North Alabama; and Sheets, as you will see by his letter, is in favor of Humphrey’s appoint¬ 
ment. The reason why we are anxious to have the matter attended to soon is that business 
is leaving the district and going to Burke and Spencer, and Mr. Humphreys wants to have 
the matter decided soon as possible. 

“ If you succeed in having him confirmed or appointed, could you not send it by telegraph, 
as mails are irregular? 

“Hope Judge Busteed is improving rapidly. Shall be delighted to hear of his speedy 
return to health and duty. Please remember me kindly to him, and tell him I duly appre¬ 
ciate his compliment in seeing me in his condition. Please let me hear from you soon. 

“Yours, respectfully, 

“J. Y. CANTWELL. 


“Mr. WORRALL.” 


Washington, D. C., February 15, 1869. 

Eliot C. V. Blake sworn and examined. 

By Mr. Semple: 

Question. Where do you reside.—Answer. Montgomery, Alabama. 

Q. Are you clerk of the district court of the United States for the middle district of Ala¬ 
bama.—A. Yes. 

Q. When were you appointed.—A. Sometime in the first part of 1866 or in the latter 
part of December, 1865. 

Q. Look at the order of distribution in the case of the United States vs. 120 bales of cot¬ 
ton, and state whether it is a transcript of the record of the court.—A. It is. 

Q. Was the original order of distribution on file in the clerk’s office.—A. No, sir; it has 

never been on file. . .. 

Q. Plave any orders of distribution made in those confiscation cases in the district court 
of the United States for the middle district of Alabama been on file in the clerk’s office.—A. 

Some have. c , . 

Q. What ones have been filed there.—A. That it is impossible to state. So tar as tins 

case is concerned, this order has not been filed. > 

q Do you know whether any other order of distribution than this one, dated 2Jth Decem¬ 
ber, 1866, was on file in the clerk’s office.—A. No, sir; no othfer was on file. 


324 


Q. Do you know of any other having- been made in this same case besides this one.—A. 
Yes, sir; there is another one besides this. 

Q. Have you ever seen it in the clerk’s office.—A. No, sir; it is not on file. I have seen 
the order. 


By Mr. Eldridge: 

Q. What case is it in.—A. In the same case—of the United States vs. 120 bales of cotton. 
Q. Against the same cotton.—A. Yes, sir. 


By Mr. Semple: 

Q. This paper, which I now hand you, purports to be a transcript, signed by you as clerk 
of the court.—A. It is a copy of a paper on file in the clerk’s office ot the district court for 
the middle district of Alabama. It is a paper, signed by Judge Busteed, informing the par¬ 
ties interested that the informer, McCloskey, denies his right to postpone the receipt ot the 
portion of the money awarded to them. 


The paper was put in evidence, and is as follows: 


“United States 
li vs. 

“Johnson & Morris, 

“ to recover 120 bales cotton. 


I “ In chambers, before Hon. Richard Busteed, United 
States district judge for the State of Alabama. 


“ Be it remembered that, on the 3d day of June, 1867, a notice in writing was served 
upon Samuel F. Rice, esq., attorney for Johnson & Morris in the above-entitled cause, in 
the words and figures following: 


“ Montgomery, June 3, 1867. 


“ United States of America d 


“ vs. 1 

“ 120 Bales of Cotton, 

“ Johnson <fe Morris, Claimants. J 

“Sir : You were heretofore informed in writing by me that the funds made upon execu¬ 
tion in the above-entitled proceedings would be kept in the registry of the court to enable 
you to take the necessary steps by way of appeal to have the judgment therein reviewed. 
The informer, E. E. McCloskey, denies my right to make an order that postpones the receipt 
of that portion of the moneys awarded him by statute. This is to notify you that I will 
hear such argument on the question as counsel on either side shall submit to-morrow, the 
4th day of June instant, at 10 o’clock a. m., at the court-room, in this city. 

Yours ifcc 

“RICHARD BUSTEED, Judge, Sfc. 


“ Samuel F. Rice, Attorney for Claimants .” 

“Thereupon, at the time and place designated in the foregoing notice, the said E. E. 
McCloskey, by his attorney, James Q. Smith, esq., and the said Johnson & Morris, by 
their attorney, W. P. Chilton, appeared before his honor Richard Busteed, and the said 
attorney for said McCloskey moved the judge to grant an order directing the clerk to pay 
over to the said McCloskey the amount claimed by him as informer, to wit: one-half the 
net sum raised under and by virtue of an execution in favor of the United States and 
against the said Johnson & Morris, in a cause then lately decided in the district court for the 
middle district of Alabama, a copy of the record of which said cause, with motion and re¬ 
turn, is hereto attached as a part thereof, marked Exhibit A; and the said Smith, as 
attorney for the said McCloskey, produced before the judge the affidavit of information hereto 
attached, marked B and made part hereof, and also the said McCloskey’s bond, with 
security for costs, which bond is hereto attached, marked C, and made part hereof. 

“ The said attorney for said Johnson & Morris objected to the judge’s entertaining the 
motion on these several grounds: 

“ 1st. That the original proceedings upon which the funds sought to be distributed were 
raised, was a proceeding in personam, and in the nature of an action of trover and conver¬ 
sion, and not in admiralty or in rem ; and so the defendants, by their said attorney, insist 
that the judge in vacation has no jurisdiction to grant the order of distribution moved for 
by said McCloskey ; but the judge ruled that he had jurisdiction in vacation to hear and 
determine said motion and proceeded to the hearing thereof, and overruled said objection, to 
which the said Johnson & Morris excepted. 

“2d. Said Johnson & Morris, by their said attorney, objected that the record of the said 
cause of the United States against them—heretofore attached, marked Exhibit A—shows 
no informer, and, inasmuch as now appears by the said record, none exists. This objection 
was overruled by the judge, and defendants excepted. 

“3d. Said Johnson & Morris further objected that no law of Congress authorized an in¬ 
former to have any portion of the sum collected in said cause. This objection was over¬ 
ruled, and said defendants excepted. 

“ And this being all the proof and all the objections made by the said Johnson & Morris, 
the judge proceeded to make the order of distribution hereto attached, marked D, which is 


325 


made part hereof, to the making of which order of distribution the said Johnson & Morris 
excepted; and this is signed and sealed by the presiding judge as a record of the proceed¬ 
ings, objections, and exceptions taken upon the trial of said motion, and ordered to be en¬ 
rolled upon the record. 

[ SEAL -3 . “RICHARD BUSTEED, 

“ United States District Judge for the State of Alabama. 

“United States District Court, Middle District of Alabama: 

“ I, E. C. V. Blake, clerk of the district court aforesaid, do hereby certify that the fore¬ 
going pages, from 1 to 6 inclusive, is a true and correct copy of the original. Exhibit D 
is not in my office. 

“Witness my hand and the seal of the district court this 30th day of January, A. D. 1869 
[ SEA L.] “E. C. V. BLAKE, 

11 Clerk United States District Court." 

Q« This paper was certified by you on the 30th of January, 1869.—A. Yes, sir. 

Q* The bill of exceptions signed by Judge Busteed in this proceeding refers to certain 
exhibits, and one of them is the order of distribution made in 1867.—A. Yes, sir. 

Q. Why were not these exhibits attached to the transcript.—A. The order for distribution 
does not belong to the clerk until a final settlement is made. It is really a voucher for the 
marshal until then. After the matter is settled then I claim all the papers in the case, but 
not until then. I never assert a claim until I have a clean bill for the whole thing, and the 
marshal would not turn them over to me anyhow. 

By Mr. Eldridge : 

Q. Why should not the same rule apply in this case as applies to a decree in court? Why 
not take the paper and give him a certified transcript of it.—A. The press of business is such 
that we never can do much copying at all in the office. 

Q. Then the parties interested cannot find out exactly what disposition is made in the case 
by going to the clerk’s office.—A. Oh, yes ; we can find out for them. 

Q. But the records in the clerk’s office do not show what disposition is made in the case.— 
A. When the case is over and when final distribution is made, then it can be found out; the 
clerk’s business is so great that it is impossible to write up the minutes of the court. 

By Mr. Churchill : 

Q. Then if the marshal should alter the order while in his hands the clerk would have 
no means of correcting his action.—A. The marshal could not alter it very easily without 
its being known, as the alteration would be in a different handwriting, and he would certainly 
be called to account. 

By Mr. Eldridge : 

Q. He carries that paper with him until he executes it.—A. Yes, sir. 

Q. It is a paper deposited with him.—A. Yes, sir; and after he executes it he returns it. 

By Mr. Churchill: 

Q. Suppose the marshal loses the paper and a dispute arises as to what its terms were.— 
A. We have never had a case of that kind. 

By Mr. Semple : 

Q. I see that this bill of exception recites that the district attorney produced before the 
j'udge the affidavit of information marked B, and also the bond of McCloskey marked 
C, which are said to be hereto attached, but neither exhibits B nor C are attached to this 
transcript.—A. That paper had no business in the clerk’s office, but belonged to the dis 
trict attorney’s office. I hardly ever knew an informer in a case until his case came out; 
the district attorney never told me and never would. 

Q. Then those papers that are referred to as being a part of the bills of exception have 
never been in your office.—A. I cannot say whether they have or not. I know very little 
about that case except that I heard it tried, and I saw the order of distribution that you 
spoke of; that is about the extent of my knowledge in that case. I had nothing to do with 
it; I was sick at the time that it was going on. 

Q. Do you know whether a paper, purporting to be a transcript of the proceedings on 
application for the order of distribution, had been made out for the Supreme Court on appeal 
from that order.—A. I never saw anything about it until I saw the transcript in that printed 
pamphlet. I heard that the case had been taken up to the Supreme Court, but that is the 
first that I saw of it. 

Q. If such a transcript was made out it must have been made out in your absence.—A. 
Yes ; that is the first I have seen of anything in the shape of a transcript in the case. 

Q. Were you in Montgomery at the time of the application for this order of distribution in 
January, 1867.—A. No, sir. 

Q. When were you first in Montgomery after that.—A. I was there in the May term of 1868. 

Q. Are you a son-in-law of Judge Busteed.—A. Yes, sir. 


326 

Q. Do you remember the delivery or offer to you of an order on you as clerk by Mr. Rob¬ 
ert T. Smith.—A. Yes. 

Q. That was an order on you for $500, purporting- to be signed by John O. D. Smith.—A. 
Yes. 

Q. At the time that order was presented to you did you offer to pay it.—A. The order was 
presented to me to pay to General Spencer $500, and I offered to pay him. I do not know 
whether I had the ready money in my pocket or not at the time, but he told me to hold on, 
or something of that kind. 

Q. When this order was presented to you by Mr. Robert T. Smith, did he not say that 
you could settle it with General Spencer.—A. He handed it to me and I opened it and saw 
that it was an order to pay $500 to General Spencer. I do not think he said anything about 
it at all. 

Q. Did he hand the order to you or to General Spencer.—A. To me, directly. 

Q. Was General Spencer present at the time.—A. Yes, sir; General Spencer was present 
at the time. 

Q. Did Smith say anything at the time as to the object of the order.—A. No, sir; he did 
not say a thing. He handed it to me, and I think that almost immediately after he bade me 
good morning and went out. 

Q. Did he say, “ I suppose you and General Spencer understand this.”—A. No, sir; he 
did not. 

Q. He made no explanation whatever of it.—A. No explanation at all. 

Q. Did you pay General Spencer the money.—A. No, sir. 

Q. Why not —A. I offered to pay it to him, and General Spencer told me what the paper 
meant. He said it was a present from John O. D. Smith to Judge Busteed, and he told me 
that I could settle the thing myself. I took the order and put it in my pocket-book ; I did 
not know what the order was for until after General Spencer told me, and I think that Mr. 
Smith was out of the office at the time. 

Q. Did you charge it to Mr. Smith.—A. No, sir. 

Q. Or make any entry whatever of it.—A. No, sir. 

Q. Did you return it to him at once.—A. No, sir. 

Q. You never returned it to him.—A. No, sir. 

Q. Did you ever communicate to him what disposition you intended to make of it.—A. 
No, sir; I never said a word to Mr. Smith about it. That was some time between the time 
of the adjournment of the court and the 26th of July: some time within those two months. 

Q. You made returns, according to the requirements of the law, of the emoluments in the 
office of clerk.—A. Yes, sir. 

Q. In making those returns, did you include any estimate of the fees assigned to you as 
clerk, arising from confiscation cases and libel suits.—A. Yes ; of everything received in the 
office directly as clerk. 

Q. What was the proportion of the costs assigned to you in those confiscation cases, or 
those information suits—I mean where the persons had obtained pardons and where the 
cases were settled in consequence.—A. Part of the time my proportion of the fees was one- 
eighth, and the latter part of the time it was one-quarter. 

Q. What were the proportions of the other officers.—A. I think the district attorney’s pro¬ 
portion was one-half, and of course when I received one quarter the marshal received the 
other quarter; probably he had over one-quarter when I was receiving only one-eighth, but 
1 cannot state about that. 

By Judge Busteed : 

Q. State when you first saw the paper that is now shown you, being a transcript of the 
order of distribution in the case of the United States against Morris & Johnson.—A. It 
must have been sometime between January and May, 1868. 

Q. Where did you first see it.—A. In Chicago. 

Q. How did you get it.—A. Mr. Storer sent it to me. 

Q. Was it ever on file in your office.—A. It was never on file in the office. 

Q. Why was it not filed.—A. It belonged to the marshal as a voucher. I got it from Mr. 
Storer ; I wanted to count up my fees and desired this paper, and he sent it on to me. 

Q. How did Judge Busteed get it, and when.—A. I left it at his house in Jamaica, Long 
Island, last December. 

Q. Did you leave anything else with this paper when you left it.—A. Yes ; I left the order 
purporting to be drawn by John O. D. Smith on me to pay General Spencer $500. 

Q. When did Judge Busteed first know of that order of John O I). Smith.—A. I think 
it was in the month of August, 1868, in the early part of the mouth. 

Q. Where was it communicated to him —A. In his house at Jamaica, Long Island. 

Q. Who was present.—A. General Spencer and Colonel Temple Clark. 

Q. State what the papers are that are shown to you.—A. The first one is the information 
to the district attorney, signed by E. E. McCloskey, in the case of the United States against 
120 bales of cotton, Josiah Morris and J. F. Johnson, claimants. The next is an affidavit 
sworn by James Q. Smith, United States district attorney; and the next is an order signed 
by Richard Busteed, judge, dated June 4, 1867. 


327 


Q. Do these purport to be copies of original papers.—A.. Yes. 

Q. W heie aie the originals. A. In the hands of the ex-district attorney, Janies Q. Smith. 

Q. Did you compare this copy with the original.—A. I wrote it off as correctly as I could. 
It is all in my own handwriting; I believe it to be true and correct in every particular. 

By Mr. Eldridge : 

Q. When were the originals made.—A. The originals were made on June 4, 1367. 

Q* Did you see them before they went into the hands of the district attorney.—A. No, sir. 

Q. How do you know that they were made at that time.—A. I know from the hand¬ 
writing. 

Q. Whose hand are they in.—A. I do not remember. 

Q. Then how do you know they are the same.—A. I know that the date is put there by 
either one of the parties cognizant of the fact. 

Q. What do you mean by saying it is the same ; what did j’ou compare it with ; when did 
you first, see those papers.—A. I never saw them until the day that I copied them, and wrote 
my certificate; that was the 30th of January, 1869. 

Q. You knew nothing about them from your own knowledge before that time.—A. Noth¬ 
ing at all, except that I knew the judge’s signature. 

The papers were put in evidence, and are as follows; 

“To JAMES Q. Smith, Esq., U. S. District Attorney for the Middle District of Alabama : 

“ The undersigned respectfully submits to said United States district attorney the following 
information, to be used by him in proceedings to be instituted by him in behalf of the United 
States, in the manner provided in the actor acts of Congress making provision for informants 
in the event of condemnation of the property, and to this end and object the undersigned would 
state: That in the year J861 or 1862 one Thomas H. Watts, a person engaged in the rebellion, 
subscribed, or sold, or gave (165) one hundred and sixty-five bales of cotton to carry on 
the rebellion and ‘for the defence of the Confederate States of America;’ that said cotton 
was taken charge of by James A. Farley, cotton agent of the rebel government at Mont¬ 
gomery, and by him stored in the cotton warehouse, known as the cotton warehouse of J. F. 
Johnson & Co., in the city of Montgomery, on account of the said Confederate States ; that 
120 bales of said cotton remained in said warehouse until April, 1865, when it was moved 
therefrom without authority by J. F. Johnson and Josiah Morris, who caused it to be moved 
to a private warehouse or garden, and after remaining there for some four or five weeks was 
moved and sold by the said Johnson & Morris, and the proceeds appropriated to their own 
use; that said cotton was sold some time in May or June to one George P. Floyd ; that the 
following-named witnesses will prove all the necessary facts : Wesley Barnes will prove that 
lie, by direction of J. F. Johnson, delivered 120 bales of said cotton to James A. Carpenter, 
to be hauled to J. F. Johnson’s private garden and to be there stored. James A. Carpenter 
will prove that he was employed by Johnson & Morris to haul on his drays said cotton to 
said garden. Norton S. Perry will prove he delivered said cotton to Carpenter or to drays 
under his charge. George P. Floyd will prove he purchased the cotton from Morris, aud 

paid him-. D. II. Schuler paid for Floyd the money. H. \V. Crittenden will prove 

same facts. James A. Farley, C. S. A. cotton agent, will prove that the cotton was Con¬ 
federate States cotton, and in his possession as property of Confederate States until moved 
by Johnson & Morris. 

“E. E. McCROSKEY. 

“Sworn to and subscribed before me this the 10th day of July, 1866. 

“E. C. V. BLAKE, 

“ Cleric U. S. District Court Middle District of Alabama.'" 

“In the district court of the United States for the middle district of Alabama. 

“ United States of America, ^ 

“ rs. 1 

“ 120 Bales of Cotton. f 

“Josiah C. Morris and J. F. Johnson, Claimants. J 

“James Q. Smith, being duly sworn, deposes and says, that, as district attorney of the 
United States for the middle district of Alabama, he instituted proceedings in the above 
entitled matter, and, as such attorney, conducted the legal proceedings therein to trial, judg¬ 
ment, and execution; that, upon the judgment pronounced by the court execution was issued 
to the marshal of the United States for the middle district of Alabama, who afterwards levied 
upon the property of the above-named claimants, and caused the said execution to be satisfied 
therefrom. Deponent further says, that he received from E. E. McCroskey, of said middle 
district of Alabama, information of all the facts upon which the libel of information was sub¬ 
sequently based and filed. That upon the trial those facts were made to appear in proof, and 
that they were all material to a recovery. Deponent further says that he derived the knowl¬ 
edge of the said facts from the said E. E. McCroskey alone, aud that neither deponent nor 
any other person, so far as deponent’s knowledge extends, had information of such facts. 



328 


Deponent further says, that before lie caused the libel of information in this matter to be filed 
lie took and reduced to writing the information so conveyed to him by the said E. E. McCroskcy, 
and caused the said writing to be subscribed, and the truth thereof sworn to by the said E. 
E. McCroskey, and that the said writing is hereunto annexed. 

“JAMES Q. SMITH. 

“ Subscribed and svrorn to this 4th day of June, A. D. 18G7, before me. 

“RICHARD BUSTEED, 

“ U. S. District Judge .” 

“In the district court of the United States for the middle district of Alabama. 

“ United States of America, 

“ vs. 

“120 Bales of Cotton. 

“ Josiah C. Morris and J. F. Johnson, Claimants. 

“Present: The Hon. Richard Busteed. 

“ A recovery having been heretofore had in favor of the United States, in the above-entitled 
proceedings, and execution having been issued upon the judgment therein, and the marshal 
for the United States, to whom the said execution was issued, having made a return that the 
same has been fully satisfied : 

“And it being made to appear to the court, by the affidavit of E. E. McCroskey, the informer, 
and of James Q. Smith, esq., under whom, as district attorney of the United States for the 
middle district of Alabama, the proceedings in the above-entitled matter were instituted and 
conducted to a close; that the said E. E. McCroskey is the person who gave information of 
the facts upon which the right to a recovery was based : 

“And a motion being now made for a distribution to the informer of his moiety according 
to the provisions of law in such cases made and provided: 

“Wherefore, upon reading and filing the said affidavits and hearing James Q. Smith, esq , 
lately district attorney of the United States, in support of the motion, and Wm. P. Cbitton, 
esq , opposed ; and after due deliberation had thereupon, 

“ It is ordered, adjudged, and decreed, that the said E. E. McCroskey is the informer in this 
matter, and that he is entitled to receive the one-half part of the recovery therein, and the 
clerk of this court is hereby authorized and directed to pay the said one-half unto the said 
E. E. McCroskey, or his legally authorized attorney, taking his receipt therefor, and filing 
the same. 

“ RICHARD BUSTEED, 
“Judge, Sfc. 

“June 4, 1867 : Entered. 

“ I, E. C. V. Blake, clerk United States district court, do hereby certify that the foregoing 
is a true and correct copy of the original. Witness my hand and the seal of the United States 
district court, this 30th day of January, 1869. 

[seal.] “E. C. V. BLAKE, 

“ Clerk U. S. Dist. Court Mid. Dist. of Alabama." 

By Mr. Semple : 

Q. When did you get those papers from James Q. Smith.—A. The very day that I copied 
them, the 30th of January, 1869. 

By Mr. Eldridge : 

Q. Is there not an affidavit among those papers copied by you.—A. Yes, sir. 

Q. Was that taken at the time it bears date.—A. Yes, sir; that is all correct. We have 
so much business in swearing people that I cannot remember swearing this man particularly. 
It is down there, and I certified its being correct, and I bet it is. 

Q. Was it your original signature to the affidavit that you copied.—A. I think it was ; but 
I do not like to say so because others in the office signed my name. 

Q. Did others sign your name to affidavits.—A. O, yes. 

Q. They took affidavits and signed your name to the jurat.—A. Yes, sir; the deputy clerk 
did that. 

Q. Then you cannot tell whether it w y as your original signature that you copied.—A. I 
cannot recollect about that. 

Q. Was it Judge Busteed’s original signature that you copied.—O, yes, sir; I will swear 
point-blank to that. 

By Mr. Semple : 

Q. At the time this transcript was applied for that I handed to you, and that you made out 
on the 30th of January, 1869, did not the person who applied for it ask you for a copy of the 
order of distribution —A. Yes. 

Q. Did you tell him whether you knew of more than one order of distribution.—A. I told 
him I had uever seen but one. He wanted to know how I came to get the other, and that 


329 


put me on the scent of it; that is the way I got it. That was Mr. Troy, a lawyer in Mont¬ 
gomery. He asked me it theie was not one ot such a date. He said lie knew there was one 
in existence of June the 4th. I told him that if I had ever seen it I had forgotten all about 
it , but when he gave me that information I took the trouble to look it up, and X was very 
much obliged to him for the information. 

. Q- Lhd you not tell him that you thought there was no such order in existence.—A. I told 
him I did not know of any such order being in existence. 

Q. Hid he tell you that he thought Mr. Hardy had it.—A. I told him that I thought per¬ 
haps Hardy had it. 

Q. Did you get it upon application to Hardy, or to Mr. Smith.—A. I got it from Mr. Smith. 
I went to Mr. Smith and inquired if there was such an order, and he said there was. I asked 
him how I could get it, and he said he had it. I asked him to let me have it, and he did so. 
I mean Mr. James Q. Smith, former district attorney. 

Q. He was not district attorney at the time that that order was made.—A. I cannot state 
when he was removed. 

Q. He certainly was not district attorney at the time you got the order from him.—A. No, 
sir ; he was judge of the circuit court. 

By Mr. Woodbridge: 

Q. You were clerk of the middle district.—A. Yes. 

Q. You reside in Montgomery.—A. Yes. 

Q. What time were you appointed clerk.—A. About the latter part of December, 1865, or 
the 1st of January, 1866. 

Q. Are you still clerk.—A. Yes. 

Q. When Judge Busteed held his court at Montgomery, were you always present in the 
court during the session.—A. I was always, only in June, 1867. 

Q. What in Montgomery was Judge Busteed’s conduct and bearing towards the bar.—A. 
He was always very friendly; exceedingly so. 

Q Was his manner arrogant, dictatorial, insolent.—A. I never saw him insolent, and have 
no knowledge that he was. 

Q. What was his conduct towards witnesses in the trial of the case. Wg,s it such as to in¬ 
timidate witnesses, or throw them off their balance.—A. I thought his course proper, aud 
that it showed a great desire on his part to get at all the facts of the case. I never saw any¬ 
thing improper in his conduct towards the witnesses. 

Q. Have you known any act of the judge, since youhave been connected with the court in 
Alabama, that led you to believe that his dispensation of his office had been governed by 
any corrupt or improper motives.—A. No; on the contrary, I think that he was prompted 
by the very highest motives so far as anything I saw in his conduct. 

Q. What do you know, if anything, about the judge receiving presents from General 
Spencer, or from any other person.—A. I know nothing of my own knowledge. 

Q. What do you know, if anything, from any couvers ation you have had with Judge 
Busteed.—A. All that I know in relation to that was, that I heard it generally talked about 
that some of the officers of the court had given him a present. I heard it said, perhaps, by 
Governor Smith, or by some other person, that General Spencer had given him some money. 
General Spencer never said anything to me about it. 

Q What did you hear from Judge Busteed about having received presents from General 
Spencer, or from anybody else.—A. Judge Busteed never spoke to me about it directly. I 
do not know whether I ever heard him say anything about it or not, but I have heard it 
talked about frequently. 

Q. Did you never have any conversation with Judge Busteed about it prior to these charges 
against the judge.—A. No ; prior to that time I never heard of it at all. 

Q. Since that time what conversation have you had with Judge liusteed about it.—A. I 
cannot remember any conversation with the judge in which he told me anything particularly ; 
but my impression is he mentioned in connection with these charges that the evidence was 
voluminous ; that it would till four volumes as large as the Congressional Globe. 

By Mr. Semple : 

Q. You found it impossible to make up the record of the court during the term of the 
court.—A. Yes. 

Q. Did you ever inform the judge of that.—A. I do not think I ever did. I am pretty 
positive that I did not. 

Q. Do you know whether he knew the fact that the entry was not made before the adjourn¬ 
ment of the court in many cases.—A. No; I do not think he knew anything about it. 

By Mr. Eldridge : 

Q. Do you know anything of the judge ever having received any of the costs or fees in 
the cases tried before him.—A. I never kuew of his receiving a cent directly or indirectly of 
the parties connected with cases before his court. 

Q. Do you know E. E. McCloskey.—A. O, yes. 

Q. What amount of fees did you receive in his case.—A. I have never received anything; 


330 


I do not know wliat they will amount to. The money that was made from the execution 
was deposited in the First National Bank of Selma, with the fees, and before the matter could 
be adjusted the bank went up ; the matter is now in litigation and there is a receiver settling 
up the business of the bank. 

Q. Do you know of any division or partition of fees that was made by parties upon that 
execution. Have you ever seen any order or statement with reference to it.—A. I never 
have. 

Q. Do you know from the judge that there has been any.—A. No; I never heard the 
judge say anything about this in my life. 

Q. Have you had any other fees than that of the clerk of the court.—A. Yes ; that of the 
United States commissioner for the middle district. 

Q. What amount of money have you received for your services in both offices since you 
went there.—A. I think ajbout $7,500 ; that is a large estimate. 

Q. For how long a time.—A. For three years previous to this year. 

Q. Are there other fees to which you are entitled which you have not yet received; and if 
so, to what amount.—A. The fees in this bankruptcy business I cannot tell anything about. 

Q. What is your opinion of what is coming to you there.—A. I suppose $5,000 or $0,000 
probably. 

Q. Is there not a good deal more than that.—A. I cannot tell you now. That is my 
impression. I think I have made a large estimate of it. 

Q. You have received none of those fees.—A. No; we cannot get our fees until after the 
petitioner has been discharged. 

Q. Has not the money been paid to you.—A. They are required to make their deposits 
and we have the use of the money to disburse for the petitioners. 

Q. Have you not used any portion of that money which you supposed would come to 
vou.—A. I have used portions of it, but I include that in the estimated amount of $5,000 
or $6,000. 

Q. What did you do with this money as it was paid you by the petitioners.—A. When it 
was paid to me I deposited it in the bank, to the credit of the United States district court. 

I was not obliged to deposit it by law, but I deposited it there for safe-keeping. 

Q. You say you used some of it.—A. We have used some of it of course. 

Q. And you have drawn it just when you pleased.—A. Yes. But I wish to explain that 
the Bank of Mobile is about 200 miles from Montgomery, and it costs 75 cents or a dollar to 
send a thousand dollars down there ; I have not felt like paying that, and sol have deposited 
the moneys as I have received them from time to time in one of the banks of Montgomery, 
and when I came to have something of an amount there, if I knew of a good reliable person 
going down to Mobile I would draw the money from the bank iu Montgomery and give it 
to him with our bank-book to be deposited at Mobile. 

Q. You did that when you wanted to.—A. Yes. 

Q. Did you draw also upon the bank account in Mobile from time to time.—A. No ; I 
could not draw the money from Mobile except upon an order couutersigned by the judge ; 
it is a sealed account. 

Q. Do you say that you have deposited this money that you have received in the bank¬ 
rupt cases in Mobile, where you were not able to draw it out.—A. Yes. 

Q. And in cases where the costs exceeded the amount you reserved to meet them, how 
did you get the money.—A. I have paid in a great many cases the money out of my own 
pocket. 

Q. Did you not use the money that was paid in bankrupt cases precisely as you had your 
own money.—A. Yes; I used so much of it as was necessary to pay the expenses iu each 
case, and I deposited the balance in the bank. 

Q. Did you keep a private deposit in Mobile.—A. No. 

Q. Then only such moneys as you think belonged to the court, and which you will not 
need to pay the expenses in the bankrupt cases, you have deposited in bank in the name of 
the court—A. Yes ; that is exactly the case. 

Q. Have you any idea of the sums which had been paid in any bankrupt cases, and 
which you have deposited in Mobile.—A. I cannot be positive; I think between $17,000and 
$20,000; I am not certain about the amount. 

Q. Do you draw any interest upon that amount.—A. Not a cent; I never drew a cent of 
interest upon a dollar of money belonging to me or anybody else. 

Q. How long was that money lying there.—A. I cannot tell; it has probably been there 
18 months. 

Q. Have you any arrangement with the bank by which you or the judge have had any 
compensation for the use of that money.—A. No, not at all; I never spoke to any officer iu 
that bank in my life, and I do not know of any such arrangement. 

Q. Is all the money which has been paid into court in suits, and which is undisposed of in 
the suits themselves, still in the bank at Mobile.—A. Yes, if there is any. 

Q. You, of course, now refer to the money which has been deposited since the other bank 
failed.—A. Yes, I am speaking about the deposits which were made iu the Bank of Mobile. 

Q. Has the court, yourself, or the judge, taken any moneys that belong to any of the cases 
in court and deposited it in the city of New York.—A. I have not, and I do not know that 


331 


anybody else has ; to the best of my knowledge and belief there has been none deposited in 
New York. 

Q. Could it have been done without your taking part in the transaction; was it not so 
deposited that it required your signature to draw it out.—A. It would depend upon what it 
was ; for instance, the registers in bankruptcy received deposits ; I do not know what they 
did with them. 

Q. I am speaking of what has been received by you as clerk of the court and deposited 
in the registry of the court.—A. All the money which has come to me not a cent has been 
deposited in New York. 

Q. And so far as you know there has no arrangement been made by which you or the 
judge has received any benefit for the use of that money from the bank.—A. No, not a cent. 

By Mr. Semple : 

Q. You have been in Montgomery very little within the last year or 18 months.—A. Yes. 

Q. You came there at the spring term of the court, and remained a few weeks after the 
term of the court last year, did you not.—A. I staid there until the 26th of July; before 
that time I had been on absence some 8 or 10 months, and probably louger. 

Q. All the transactions which have taken place in relation to the moneys in the registry 
of the court have been made in your absence by Storer or by your deputy.—A. Yes, if any 
moneys have been received and deposited by them. 

Q. In your absence could any money be drawn by draft by your deputy and counter¬ 
signed by the judge.—A. Notin my absence, without my knowing it, because the bank¬ 
book would show it. 

Q. Is the bank-book sent you weekly or monthly when you are in New York.—A. No, I 
see it when I go back. 

Q. Suppose you were absent 8 or 10 months, can moneys be drawn by your deputy on 
orders countersigned by the judge without your knowing it.—A. I know it as soon as I get 
the book. I will state further, that no money has been drawn from the bank except upon 
my orders and countersigned by the court. The bank account shows that fact. 

Q. Where is the bank-book that you speak of.—A. I have it with me in Washington, but 
not in this room. 

Q. Have you more than one deposit account.—A. Yes, I always keep an account in 
Montgomery ; as I said before, all moneys which I receive until I get sufficient to send them 
down to Mobile. 

Q. How much money has the court on deposit in Mobile.—A. I stated the amount to be 
some $17,00U or $18,OUO; and that is all the money I have anything to do with either as 
clerk or register in bankruptcy. 

Q. You, as clerk of the court, have to do with all the moneys which are drawn under the 
rules of the court.—A. Yes. 

Q. How much money has the court deposited to its credit in Mobile.—A. Between $17,000 
and $20,000. 

Q. That relates to the moneys which are received in Montgomery.—A. Yes; I have 
nothing to do with the moneys received in the northern or southern districts. This $17,000 
to $20,000 includes all the money which has Leen received by me in bankruptcy and as 
clerk in the court. 

Q. Part of that money that was deposited there was received in the case of Mott vs. Wil 
liams ; how much was that.—A. I do not know ; I think it was from $1,800 to $2,000 in gold 
and a small amount in greenbacks. 

By Mr. Churchill: 

Q. That has been paid to the attorney in fact of Mott, Jacob Stanwood.—A. Yes; 
whatever the balance was, some $2,000 or $3,000 was paid to him. 

Q. What was the amount of tax costs in that case.—A. I think it was something over a 
hundred dollars, but I cannot state how much. 

Q. Was it not near a thousand dollars.—A. No; I am positive as to that. It was not 
much over a hundred dollars, and that includes all the tax costs, clerk’s, marshal’s, and 
attorney’s fees. 

By Mr. Eldridge : 

Q. How large is the amount deposited by you at Montgomery.—A. I cannot state exactly, 
but we now have probably six or eight thousand dollars deposited there on account of my 
being absent from the office. 

Q. Do you get any consideration for your deposits there.—A. None, except politeness; 
they are very polite when we deposit; that is about all. 

By Mr. Semple : 

Q. Was the money which was paid to Stanwood in the Mott case paid out on your order 
or upon Storer’s order.—A. I signed the check. 

By Mr. Eldridge : 

Q. Do you know of the cases that belonged to J. O. D. Smith at any time having been 
referred to the registers of other districts.—A. I had a green clerk in the office, and my atten- 


332 


tion was called to the fact that he was referring 1 cases straight along to Worrall, which 
belonged to J. O. D. Smith, and I think some to General Spencer, arid when I discovered it 
I ordered him to draw a line through Worrall’s name and put the proper names there. 

Q. Did you have any conversation with General Spencer about that.—A. Nothing more 
ban to tell him of the mistake. 

Q. Do you remember telling General Spencer that you thought Worrall did that himself, 
and that he was very grasping.—A. I do not remember any such conversation. 

Q. Or that Worrall had got it done; had got the cases referred to him.—A. I do not 
remember any such conversation. 

Q. Do you remember cases of J. 0. D. Smith being referred to Worrall.—A. Those cases 
were exactly in the same predicament. We corrected every case in the book in which a 
mistake had been made in the reference. Our judicial district is composed of from 22 to 23 
counties, and those counties, a portion of them, are in three congressional districts ; secondly, 
we have to deal with three different registers, and in press of business a young man by the 
name of W. D. Cloud has helped us in the office. I believe he is now clerk in the house of 
representatives in Alabama, and has been ever since the reorganization of things down 
there. He was a green hand; we were obliged to be very particular; we had to keep a 
memorandum; in this way we would put down the names of the counties which were in 
J. O. D. Smith’s district, in Worrall’s district, and in Fullerton’s district. In every peti¬ 
tion which was entered we would go to work and find out where the petitioner lived ; we 
would then refer to this paper and find out to whose district it belonged. 

Q. Do you not know that J. O. D. Smith had a great deal of trouble in getting the 
cases that belonged to him and that he has not got them all.—A. He has got them all, so far 
as my knowledge extends. 

Q Did you ever see him at your office with General Spencer.—A. I never saw him there 
with General Spencer but once. J. O. D. Smith came to me and spoke something about 
his references not coming up, and I told him we were greatly pushed in business ; that this 
young man was busy entering up the cases, and that we had got behindhand ; that the other 
registers were on hand and were clamoring for their references, and we could not correct 
the errors which had been made in his until we got through. I told him that, I think, some 
time after the spring term of 1868. 

Q. Did the judge know anything about these cases being so kept back.—A. No; nothing 
from me or from any other person that I know of. 

Q. Did he give any directions himself about them.—A. No; he never gave directions 
in regard to Smith’s or any of the cases. 

Q. Had not J. O. D. Smith, or his friends for him, been complaining about not getting 
his cases just before or about the time that the $500 order was first shown to you.—A. No ; 
they had not been complaining to me or to any other person that I know of; that was the 
first time I ever saw Smith. I told him exactly ; stated the case that my clerk and myself 
were very busy, and we had not all the cases entered up ; that I wanted to get the cases in 
bankruptcy entered up, and then I would take hold of his cases and refer them as quickly 
as possible. 

Q. This was in the spring term of 1868, which commences the fourth Monday in May, and 
you had not been there after business had got fairly under way until that time; the 
fourth Monday in May, in 1868.—A. I had not. 

Q. What was the date of the order given you to pay $500.—A. I do not remember. 

Q. Had you any idea either from Spencer, or from any other person, or from any other 
circumstance, that that order had some connection in Smith’s mind, at least with his desire 
to get possession of these cases.—A. No; I never knew that it was for auy purpose of that 
kind at all. I never knew at the time the paper was handed to me what it was for. 

Q. What did you think he wanted to make a present to Judge Busteed for.—A. The order 
was written payable to General George E. Spencer. 

Q. What did you suppose that he wanted to make a present to Judge Busteed of $500 
for.—A. For the same reason as he would to anybody to whom he wished to make a present. 
I did not know then that it was a present; I did not know anything at all of the nature of 
the thing. 

Q. When did you first understand that it was a present to Judge Busteed.—A. I never 
heard anything about it until I heard this thing talked about in Montgomery by everybody. 

Q. General Spencer told you at the time that it was to go to Judge Busteed; what did you 
suppose it was for.—A. I did not know. 

Q. Did you speak to Judge Busteed about it.—A. No; I never spoke to him about it at 
all until some time in August, and it was then the first time that he ever knew that such 
an order was in existence. 

Q. Did you see him before that.—A. Yes ; I saw him in a very short time before that. 

Q. How many times did you see him before you told him about it.—A. I cannot say. 

Q. About how many tipies.—A. I was stopping at the Metropolitan Hotel. 

Q. Where was he stopping.—A. He was living in the country, 12 or 13 miles out. 

Q. Did you always see him when he was in town.—A. I generally saw him when he was 
in town. 


333 


Q. Was lie not in town frequently.—A. I do not remember; I did not charge my memory 
with it at all. 8 J 

Q. Between the date of the order and the time when you told Judge Busteed about it in 
August, how many times do you suppose you saw him.—A. I think I did not see him but 
once. 

Q. And you did not tell him that you had an order for $500 for him.—A. No, I never told 
him about it; the first time he ever knew it from me was some time in August. 

Q. What did you tell him it was for.—A. I told him I had an order from J. 0. D. Smith 
to pay him $500. 

Q. What did he say.—A. He said he would not take it. 

Q. Did he ask what it was for.—A. I do not think he did. 

Q. And you and he did not say a word about what it was for.—A. No. 

Q. Did you know at the time what it was for ; at that time what it was for.—A. No. 

Q. That was after the charges had been filed here.—A. I knew the charges had been pre¬ 
sented, but the exact time when, I did not know. 

Q. Was General Spencer present at that time.—A. General Spencer and Colonel Temple 
Clarke were present. 

Q. Had you ever shown Judge Busteed that order before that time.—A. I had not. 

Q. If that order was a proper thing to have been given, and proper for Judge Busteed to 
have received and you so understood it, would you not have told him about your having an 
order for $500 for him.—A. Not till I saw him. 

Q. You say you did not tell him that you had such an order for him the first time you saw 
him.—A. I did not think about it. 

Q If anybody had handed you an order for $500 for Judge Busteed, and you had no sus¬ 
picion about it, would you not have told him when you met him.—A. I would if I had 
thought of it; but at this time I was in very bad health ; I hardly went out of the house; I 
lay upon a lounge most of the time and I did not care much about anything about business. 

Q. When Judge Busteed finally declined taking it, did you notify General Spencer and 
offer to return it to him.—A. No, I never said anything to him, to the best of my knowledge. 

Q. Why ? Did you not offer it—to return it to him. There was the valid order and the 
money in your hands.—A. Yes but I noticed one thing, that the order did not seem to me to 
be written in J. O. D. Smith’s handwriting. 

Q. Was that the reason you did not pay any attention to it.—A. No. 

Q. Was that the reason you did not offer to return the order.—A. I saw no necessity for it. 

Q. The order was in your hands; it was a valid order, and Judge Busteed declined to take 
it, and still you say you never offered to return it.—A. I never saw John O. D. Smith until 
some time afterwards, last December, I think. 

Q. That order was given to General Spencer; was it endorsed payable to you.—A. No, it 
was drawn upon me and payable to General Spencer; it was handed to me by Robert T. 
Smith in the presence of General Spencer, and I offered to pay the money to General Spencer, 
or I said it was all right. 

Q. Upon your direct examination you said, as I understood, that after Smith went out 
Spencer at the time informed you that it. was a present to Judge Busteed.—A. He said that 
it was all right; that it was to be paid to Judge Busteed. 

Q. Did he say that it was to be a present to Judge Busteed.—A. He may have said that it 
was a present from J. O. D. Smith to Judge Busteed ; I do not recollect positively as to that; 
but I understood from the draft that I was to pay $500 to Judge Busteed. 

Q. Were you and General Spencer on intimate terms.—A. I cannot say we were; I have 
never seen him until a short time before. 

Q. You are on friendly terms.—A. Yes, just as I am with any person. 

Q. And you were there alone in the office when you gave him the information.—A. I 
think so. 

Q. Did not General Spencer tell you that he had been the means of getting Smith to give 
this order.—A. I have no recollection of his saying so. 

Q. Did he not tell you that he had given $1,000 to Judge Busteed, and that he had got 
Smith to give this to the judge.—A. I never heard General Spencer, or Mr. Smith, or any 
person say that he had given money to the judge. 

Q. Did he not tell you that he had given $1,000, and that Judge Busteed was sick and 
needy, and that he had got J. O. D. Smith to do this.—A. To the best of my knowledge he 
told me no such thing, for there never were any persons coming around me with anything 
that was out of the way. 

Q. You stated that General Spencer told you that it was a present to Judge Busteed.—A. 
He may have said that or not. _ 

Q. If he did say that, did you not understand that there was something wrong about it. 

A. I did not know that there was anything wrong about it; I did not know whethei it was 
given for a good consideration or not. _ 

Q. If it was a present you knew what it was for.—A. I supposed it was a piesent, but 1 
cannot state positively whether he stated that it was a present or not. 

Q. You say that persons would not come around you with any wrong ; why did you not 
then return it with indignation.—A. I did not know that there w r as anything wrong about it. 


334 


Q. You considered it all square and right, did you. You thought it was proper for Smith 
to give $500 to the judge.—A. 1 did not know what it was for. 

Q. Did you think it proper to give the judge $500.—A. Of course, the way the order 
read. 

Q. Did you offer to give Judge Busteed the money.—A. No; I said to him that I had 
such an order. 

Q. You did not tell him you had the money.—A. No. 

Q. You did not offer to pay him the money.—A. I told him that I had the order, and if lie 
had wanted to make a demand upon me he could have done it, and very likely I should 
have paid it over to him. 

Q. Have you kept the money since.—A. No; J. O. D. Smith can get the $500 when he 
wants it. 

Q. Where is it.—A. It is deposited in the bank ; it is kept with the other moneys ; just the 
same as the other money is, belonging to the court. 

By Mr. Semple : 

Q. Who did you find he gave the order to.—A. I left the order at Judge Busteed’s house 
wrapped up in a piece of paper directed to him last December. 

Q. Did the judge ever tell you to retain the order.—A. Not that I remember of. 

Q. Did you, at any time, send a circular to the registers in bankruptcy saying that they 
must pay the $50 fee which was required in each case, or the petitions would not be received 
and referred to them.—A. No; I never called upon them or upon any other officers con¬ 
nected with the court, to send in their fees. 

Q. Did you not tell General Spencer and J. O. D. Smith both of them that you must have 
the $50 deposited before you would make the order of reference to them. —A. No; I never 
said anything to them or to anybody else of that kind. 

Q. Was there any such letter written to them by your direction.—A. I never knew of any 
such letter until Mr. Semple spoke about it; I do not know that any such letter was writ¬ 
ten ; I gave no order to that effect; I am positive as to that; I do not remember any such 
order. 

By Judge Busteed: 

Q. You are not a lawyer by profession.—A. No. 

Q. You were in the naval service of the United States during the entire rebellion.—A. Yes. 

Q. And you graduated at the naval school at Annapolis.—A. Yes. 

Q. You were in command and lieutenant upon the frigate Wabash.—A. Yes ; I have been 
on several vessels. 

By Mr. Churchill : 

Q Have you any knowledge, or have you ever received any information from any source 
of Judge Busteed’s having received, while he was in Alabama, money other than that which 
has come from his official salary.—A. I do not know that he has ever received any ; the only 
thing I know about it is since these charges come out; I have heard people talking in Mont¬ 
gomery about it. 

Q Did these parties whom you heard talking about the matter profess to have personal 
knowledge upon the subject.—A. O, no ; it was just a rumor, as people talk about any 
scandal. 

Price Williams sworn and examined. 

By Mr. Smith : 

Question. Did you have 227 bales of cotton upon the lighter Natchez which went to 
pieces and sunk in the bay of Mobile.—Answer. Yes; that was the number of bales which 
I represented for myself and for other parties; it stood in my name for McNeal, Garner, 
.Royster, and Price Williams Sons. 

Q. By -what proceeding had you obtained that cotton in Mobile.—A. A portion of the cot¬ 
ton had been seized by the government before it came to Mobile ; but after it came to Mobile 
it was taken possession of by Mr. Tomeny, the treasury agent, who had put it ou board a 
vessel—of which Eldridge was master—to be shipped to New York ; I applied to Judge 
Campbell for a letter to Reverdy Johnson, expecting to have to follow the cotton to New 
York ; Judge Campbell, on being informed of the nature of my business, said that I had the 
remedy then; I accordingly libelled the cotton through Judge Campbell and it was detained. 

Q. Was there any fraud practiced upon the court in obtaining these legal proceedings. 

(Question objected to, and modified as follows:) 

Q. State whether you know anything whatever that was peculiar in the legal proceedings 
in this case further than your employment of Judge Campbell, and the assertion of your legal 
rights.—A. There was no act of mine whatever that was done secretly or clandestinely, or 
with the intention of covering up anything ; I got the legal papers of the court from Mr. 
Worrall upon oath; then Judge Campbell went with me and Jacob Wilson to the vessel; 
we put the notice upon it; the case then went into court and was attended to by Judge 
Campbell and by Peter Hamilton, and I had nothing more to do with it; when the case 
came up in court the cotton was awarded to us. 


335 

Q. Was there any unwarranted or peculiar practice on the part of the lawyers.—A. None 
in the world. 

Q Was John T. Taylor your principal attorney.—A. Yes; Dargan & Taylor are my 
retained attorneys in Mobile, and Judge Campbell I consulted in this case and he drew up 
the papers. 

Q. Is Mr. Taylor a man of high character and honor.—A. Yes; as much so as any prac¬ 
ticing lawyer we have in the city, I think. 

Q. That cotton was subsequently seized by an order of the court, was it not.—A. Yes; 
when the cotton was awarded to me in the name of Price Williams & Sons I went to Tuttle 
& McNeil and engaged them to ship the cotton to Liverpool; we had it compressed and it 
was put on board the same vessel to take it down to our shipping; but before it got to the 
shipping the vessel went to pieces; what became of that particular cotton I do not know; 
but certain cotton which was picked up from the debris was seized when it got into the city 
as that cotton, or in the place of it. 

Q. Was that cotton insured or not.—A. Yes; it w T as insured in Liverpool; we instructed 
Tuttle & McNeil to write on immediately to Liverpool and have it insured, and they did it. 

Q. Did you have trouble about getting the insurance money.—A. The parties underwrit¬ 
ing in Liverpool paid us for the cotton, except a certain quantum which was detained under 
the second seizure by the United States court. 

Q. How much of the cotton actually recovered from the Natchez was really of your lot.— 
A. I cannot tell you. I never saw the cotton. I suppose the marks were very much oblit¬ 
erated. 

Q. What was the amount of the remnant of money in court upon the adjudication of 
which the payment by the English underwriters was made to depend.—A. My impression is 
that it was to the rise of $3,000; that it was between $3,000 and $3,500 we claimed at the 
time of the second seizure. 

Q. Was it matter of importance to you to get the matter settled in court.—A. We could 
not get the money paid over by the underwriters. We looked to them after the loss of the 
cotton; they said, “ No, we will not pay so far as any of this cotton is tied up by your own 
courts.” We then became interested to get the matter disposed of. that we might get the 
balance of about $3,000. 

Q. When did you get the matter settled.—A. It must have been some time in 1868, some 
six or eight months ago, that we got the money from the underwriters through McNeil &, Tut¬ 
tle. The matter went out of court in the latter part of 1867,1 believe, though I am not pos¬ 
itive as to the precise date. 

Q. What time was it that Garner employed Andrews to get the money.—A. I reckon it 
must have been 12 or 18 months after the seizure, though my answer as to the precise time 
must be a sort of guess. 

Q. How long after he was employed before you got the money.—A. It was five or six 
months. We did not get the money from the court, but after the decision of the cause in the 
court we received it from the underwriters. 

Q. Can you recollect whether Andrews was employed at the last spring term of the court 
at the beginning of it —A. I could not say whether it was the fall or spring term. 

Q. During these 12 or 18 months, or two years, while the case was hanging up in the court, 
who was your attorney.—A. My recollection is that for filing we employed no counsel, from 
the fact that we were looking to the underwriters in Liverpool; but after we heard that the 
underwriters refused to pay for this part which had been reseized we asked Judge Campbell 
and Mr. Taylor to please pay attention to the case in court. 

Q. Do you suppose they, or either of them, omitted attention, or neglected your inter¬ 
ests.—A. No. 

Q. After Andrews was employed what did you do in the way of furnishing witnesses and 
attending to the trial, or did you know of a trial.—A. I had nothing to do whatever. I 
never spoke to Andrews. 

Q. After Garner employed him you took no interest in the defence of the case.—A. I never 
had from the time of the seizure. 

Q. When was the money finally paid you, and how much was it.—A. I think it was paid 
us somewhere about June, 1868, though I have not the dates before me and am not positive. 

Q. How was this money disposed of.—A. The money came through Tuttle & McNeil, 
who were the agents for the underwriters. McNeil retained, by our consent, one-half of the 
money for Andrews according to the original contract. I wish to qualify what I have said. 
I stated that the amount involved was some $3,0UU and odd; but when we come to get the 
money, after deducting the costs and expenses, it was something over $2,000, which was to 
be divided equally between Andrews and us. MciNeil retained one-half for Andrews and 
paid over the other to us. 

Q. How long since the other half of the money that was retained for Andrews has been 

returned to you.—A. The balance lemained in McNeil’s hands from May, or from last- 

whatever the time was when it was received from the underwriters, until a short time ago, 
a few days before Garner came here. It was after Garner was subpoenaed that the money was 
finally divided between us. 

Q. State whether you had been told by any one beforehand that the way for you to get 



336 


your money was to employ Andrews and give him one-half, and if so, by whom.—A. Nobody 
ever told me that. 

Q. Had anybody suggested this course to you.—A. It was said there by some persons that 
Andrews was a friend to the court, and perhaps he would have a better chance of success 
than other attorneys. I gave no consideration to the trial of the cause at all. 

By Mr. Eldridge : 

Q. Who retained the one-half of this money that was set apart for Andrews from the time 
of its reception by McNeil to its final payment to you.—A. McNeil was the custodian of it, 
and he told Gamer and myself that he had deposited it in bank and held it subject to Gar¬ 
ner’s order. The thing had lain open so long that we met together and concluded to dis¬ 
tribute it. We thought it might not be called for at all, but if Andrews called for it each 
party would pay over his share. 

Q. Did it remain to the credit of McNeil during that period.—A. I cannot tell you only 
from this fact: I drew my portion out of the bank on his order, and I suppose it must have 
been to his credit. 

Q. Do you know of that money having been under the control of Judge Busteed.—A. I 
do not think he ever had any control over it. 

Q. You have no knowledge of any such thing.—A. None in the world. 

By Mr. Woodbridge : 

Q. This money, between $l„200 and $1,300. was retained by McNeil on your division. 
Was that done at the suggestion of Garner.—A. No; I think it was at the suggestion of 
McNeil. Being the financial agent who had brought the money from Europe, he suggested, 
as he was the dispenser of this money, and as one-half of it was due to Andrews, that he had 
better deposit it in bank to await his call. 

Q. How long did it remain in that condition.—A. From May, or June, of last year, up to 
two or three weeks ago; it may have been the day before Garner started to come here. 

Q. What reason was given to you, or what motive actuated you in making a division of 
that money within the last three or four weeks.—A. I can only say that the impression was 
that the money would not be called for. We kuew that charges had been brought against 
Judge Busteed in relation to this very cotton, and we thought that probably the money 
would not be called for. We therefore agreed to distribute it and at the. same time to pay it 
over if it was called for. 

Q. Did you know that Garner had been subpoenaed as a witness before this money was 
divided.—A. Yes. 

Q. Had that fact any influence upon you.—A. Garner said that he had been subpoenaed 
and had rather the money would be distributed before he left. 

Q. Did he give you any reason except that he was coming up here to testify, and that he 
preferred to have it divided.—A. No; that was the reason, and that was assigned. 

Q. Do you know, of your own knowledge, or from any information whatever, that Gar¬ 
ner was influenced by any person to take that course.—A. I do not; if he was, it was not 
known to me. 

Q. Do you know of his having received any letter or telegram from any person on that 
subject.—A. No. 

Q. Have you any reason to believe that Judge Busteed in any way infiuenced him to make 
the division at that time.—A. No, sir; I hardly think that sucli a thing could have occurred 
without my knowing it. Garner has been in the habit of conferring with me very freely ; we 
were partners many years. I was commission merchant to dispose of the cotton. Hecarae 
to me, and said he had a subpoena to come to Washington, and he thought we had better 
divide the money. I told him I had no objections, and assented. 

Q. That was the only reason he assigned.—A. Yes. 

Q. When the money was divided, it was with the understanding that if Andrews called 
for his pay, you gentlemen should respond and pay him —A. Yes. 

Q. Why did you think that the charges here against Judge Busteed should have any¬ 
thing to do with the money which was due to Andrews.— A. 1 had read the pamphlet making 
the charges that connected the two things. 

Q. Had you any reason to believe that Judge Busteed had any interest in that money.— 
A. None in the world. 

Q. Have you now.—A. No, sir. 

Q. Have you any reason to believe that the money was to be divided in any manner 
between Judge Busteed and Andrews.—A. Not from any intimation I have had from any 
living soul. The only thing that induced us, or that induced Garner to ask our consent to 
employ Andrews, was that he was considered a frieud of Judge Busteed’s, and a lawyer who 
would, perhaps, have some influence with the court; and we thought it would be a good plan 
to employ a gentleman who was on good terms with the court. There had been a difficulty 
between the court and some members of the bar. 

Q. Did you not think one-halt of the amount recovered was a good round fee.—A. Down 
in that county, we were glad to get our cases through the court for whatever fee we might 
have to pay. 

Q. But was it not paying a pretty round fee.—A. It was. 


337 


Q. Do you think it was merely the employment of legal, or professional, skill which you 
were paying for A. I cannot tell you; my impression was that Andrews had influence 
with the court, and that we would succeed better in getting pay for our cotton with his aid 
than we would with other counsel. 

Q. Did you think you were paying for mere professional skill and legal services.—A. No, 

I did not; because Judge Campbell’s skill is equal to that of any man" in the south ; 1 did 
not think it necessary, for the sake of legal skill, to employ anybody else. We thought we 
would get our case through the court more speedily by employing Andrews. 

Q. Have you given the committee all the information you have in relation to this matter.— 
A. I have; Ido not know of any fact, whatever, that would tend to throw further light on 
the charges against Judge Busteed. 

Q. If you do know of anything further, state it.—A. I do not know anything, further. 
Our claim to the cotton had been adjudicated on two occasions, and we thought, and think 
now, that we had as good a title to it as any man ever had in the world to his property. 

By Judge Busteed : 

Q. You are an old resident of Mobile; how long have you resided there.—A. I have been 
there some 20 years. 

Q. One Robert H. Smith, an attorney at law in Mobile, laid certain charges before the 
Judiciary Committee of the House of Representatives in the summer of 1868, in which this 
language occurs: “ Subsequently Price Williams paid to said Busteed, or to said Andrews, 
for him and said Busteed, a large sum of money;” is there any truth in that.—A. No, sir. 

Q. Is there any foundation for such a statement.—A. None, to my knowledge, except 
what I have stated to the committee to-day. 

Q. Do you consider anything which you have stated to this committee to-dav a founda¬ 
tion for such a statement.—A. No, sir; I should not think so, for I never knew Judge Bus¬ 
teed in this connection at all. I never spoke a word to him upon the subject, and I do not 
believe the other parties interested in it ever did. 

Q. Did you ever pay, or offer to pay, Judge Busteed or any person for him any sum of 
money for any purpose whatever.— A. Never a cent. 

Washington, D. C., February 16, 1869. 

Alexander McKinstry sworn and examined. 

By Judge Busteed : 

Question. Where do you reside.—Answer. In Mobile, Alabama. 

Q. How long have you resided there.—A. About 32 years. 

Q. What is your occupation in life.—A. A lawyer. 

Q. Have you been on the bench in auy of the courts of Alabama ; if so, how long.—A I 
was on the city court bench of Mobile from 1850, about 11 years. 

Q. Are you acquainted with Robert H. Smith.—A. Yes. 

Q. Are you acquainted with Judge Busteed.—A. Yes. 

Q. How long have you known Judge Busteed.—A. I think I became acquainted with 
him a day or two after he came out to Mobile after the occupation of the city by the United 
States forces. 

Q. Has your acquaintance with Judge Busteed been familiar, or intimate, or otherwise.— 
A. Rather familiar. 

Q. Have you had occasion to attend professionally upon the circuit and district court of 
the United States, held in Mobile by Judge Busteed.—A. Yes. 

Q. During the entire terms of those courts.—A. Yes ; I might have been absent a few 
days, but I have uniformly attended entire sessions. 

Q. Have you seen him preside over the courts at Montgomery at any time.—A. Yes. 

Q. Do you know Josiah Morris of Montgomery, the banker.—A. Yes. 

Q. In the month of February, 1867, did you see Josiah Morris anywhere witli Judge Bus¬ 
teed in Montgomery.—A. Yes, sir. 

Q. State the circumstances of that interview between them and what followed it —A. I can¬ 
not recollect the precise details ; I gave Judge Busteed a statement in writing. That after¬ 
noon I had been to the office of the United States district attorney; Judge Busteed was 
there. Judge Busteed was going to dine with me. 

Q. Is the paper which 1 now show you the paper which you gave me upon that occa¬ 
sion.—A. Yes, sir; it was not in this condition at that time. 

Q. Is it in your handwriting.—A. Yes. 

Q. When was it drawn.—A. It was drawn on the day of the occurrence of the facts of 
which it speaks or on the next day, I am not certain which. 

Q. Did you write it at the request of Judge Busteed.—A. I recollect his asking me to 
write it; I wrote it at his request in Montgomery. 

Q. Did you write it on the spot, at his office.—A. I think so; I cannot recollect. This 
transaction occurred some two years ago. I had forgotten the circumstances altogether, 
until I heard something a few days ago in Mobile about the testimony of Josiah Morris, and 
when I came up to this city I asked Judge Busteed if I did not give him a paper. He 

22 B 


338 


showed me this paper; I identified it as my handwriting 1 . My impression is that it was 
written in James Q. Smith’s back room, who was the United States district attorney in 
Mobile. 

By Mr. Semple : 

Q. Yon say this paper was drawn in J. Q. Smith’s back room at Mobile.—A. I say it is 
my recollection that I wrote it there. 

Q. Yes; it was written at the place at which the matter transpired of which you made 
the memorandum.—A. No; you will see by the written statement that a part of the circum- 
stances referred to occurred there, a part occurred on the street, and a part occurred in Harris 
& Hoyt’s store. 

By Mr. Churchill ; 

Q. After looking at the paper, are you able to state the facts independent of the paper 
itself.—A. O, yes ; the only doubt which I had about the facts was in being able to make 
a connected statement of them. I could answer questions about them and quote particular 
expressions which may have been made at the time. 

By Mr. Semple: 

Q. You said the paper is not in the same condition as when you made it.—A. It looks 
soiled and very much defaced. 

Q. Do you mean that it had been altered.—A. No; there is a mark upon one of the letters 
there that I do not recognize. It is merely emphasizing. It is in my handwriting. 

Q. At whose suggestion was it written.—A. At the suggestion of Judge Busteed. 

Q. When and where did you make that memorandum, according to your best recollection.— 
A. My recollection is, I made it in J. Q. Smith’s office after dinner. I made it that after¬ 
noon, I think. 

Q. It was not made at the place of the occurrence of the events.—A. It was the place 
where part of these circumstances occurred. 

Q. There is no circumstances mentioned in that paper as having occurred in J. Q. Smith’s 
office.—A. Yes ; it says, “ On Saturday, February 2, I called at J. Q. Smith’s office in Mont- 
gomeiy.” A portion of the circumstances occurred there and a portion of them did not. 

Q. As to the occurrence between Judge Busteed and Morris, which was in Harris & Hoyt’s 
store, the memorandum was not made’there ; but your best recollection is that it was made 
on the same day, is it.—A. Yes; it was done after dinner. We were on our way to dinner 
when this occurred. 

By Judge Busteed : 

Q. Did you see Judge Busteed and Josiah Morris in company anywhere that day; and if 
so, where, on the 2.d of February, 1867.—A. It was on the 2d of February, 1867, or it 
may have been the day before, I saw them at Harris & Hoyt’s jewelry store in Montgomery. 

Q. State what occurred there.—A. I think you went in there to get some rings. You 
asked me to step in there with you. 

Witness was allowed to read the paper as follows : 


“Montgomery, February 2, 1867. 

“On Saturday, February 2, 1867, called to see Judge Busteed at J. Q. Smith’s office in 
Montgomery. He stated to me that he was anxious to see no one in Montgomery. He 
wished to visit a jewelry store. I took or went with him to Harris & Hoyt’s. He stood at 
the show-case on the left hand side going in, and he went to the rear of the store. Josiah 
Morris came in; as I approached him Judge Busteed took or seized my arm and said, ‘Let 
us go.’ I had invited him to dinner with me. Mr. Morris said, ‘ I wish to say a word to 
you,’ (to Judge Busteed.) They stepped across to the other side, eight or ten feet from me, 
and Mr. Morris said a few words, when Judge Busteed replied : ‘ Write me on any subject 
you wish to speak to me of and I will give it my attention by letter; I cannot give you an 
interview.’ Judge Busteed then turned to me and we went out afterwards. Judge Busteed 
told me of an interview that he had with Mr. Morris, Johnson, and Powell, at his office in 
Mobile, of Jacob Wilson’s statement to him and so forth. I advised him that he could do 
nothing ; that at the worst, it was only a suspicion on his part that Morris intended anything 
improper which would place him (Judge Busteed) at fault if he acted on it. The statement 
of Wilson had reference to a sum of $3,000 which Wilson said Morris had given to him as 
a present on the day of the interview at Mobile when Morris et al. were at Judge Busteed's 
office. 

“ALEXANDER M. McKINSTRY. ” 

Witness. I am positive now that it was on the second day of February, 1867. 

Q. What was the habit of Judge Busteed in respect to his holding his courts wfith regu¬ 
larity or adjourning them capriciously in Mobile. Were the courts regularly held by him at 
the times to which they stood adjourned or otherwise.—A. I think they were generallv held 
regularly. 

Q. You know Peter Hamilton.—A. Yes. 


339 


Q. Was you in court during the trial of a motion entered by Peter Hamilton to set aside 
the sale of some 454 bales of cotton by the marshal, upon the ground of fraud in the sale by 
the marshal.—A. Yes, sir ; I was counsel for the marshal in the case. 

Q. Ho you recollect Hamilton’s refusing to call other witnesses who were in an ante-room 
and who had been subpoenaed, and the court saying then he would examine them to the 
issue.—A. I recollect something of the kind. 

Q. What is your recollection of it.—A. I recollect there was a series of affidavits that had 
been presented to show irregularity, I think; this was about two years ago, and I never 
thought of being called upon to testify about it until within a day or two. A man by the 
name of Joshua A. Secor had taken the jurats ; one of them, it was insisted, had not been 
sworn to. The man whose name was attached to it was called upon to testify as to the fact. 
My impression is that Judge Busteed called upon Mr. Hamilton to produce his witnesses; 
they were most of them in court. He would not produce a witness by the name of Ketchum. 
The judge said he would examine him himself. The affidavit had been presented, which was 
said to be the subject of suspicion, and the witness was called and examined by the court. 
Now, the next point I recollect, is a call for the paper. Mr. Hamilton said it was a private 
paper. I think Andrews was employed in the case. I appealed to the court that the paper, 
having been offered and having become the subject of discussion, was a public paper which 
belonged to the court, and that the court should now compel Mr. Hamilton to produce the. 
paper. 

By Mr. Eldridge : 

Q. Had that paper been read to the court.—A. It had, according to my recollection. 

By Judge Busteed : 

Q. Were you present in court at that time.—A. I was ; I recollect the fact of the dispute 
about the paper and some sharp words taking place between Mr. Hamilton and myself. 

By Mr. Eldridge : 

Q. Was the affidavit read in court.—A. My impression is that it was. 

Q. Previous to the judge requiring Mr. Hamilton to produce it. — A. I could not say. 

Q. By whom was it read.—A. It was produced as a part of the affidavits by Hamilton, 
and the copy of it was served upon us. 

By Judge Busteed : 

Q. Was it read to the court previous to the court’s requiring him to produce it.—A. I 
could not say whether that particular affidavit had been read; the affidavits were read; I 
think that was read before it was required to be produced in the court. As I said, it is so 
long a time that it was very difficult for me to recollect positively; but the whole train of 
circumstances convinces me that it was read. I recollect the fact of their being some sharp 
words between Mr. Hamilton and myself, of his putting the paper in his pocket, and then I 
insisted upon having a copy of it, and the judge compelled him to give it up. 

Q. What was the conduct of Hamilton upon that occasion towards the court.—A. I 
hardly know how to express it; Hamilten is a man that has a great command of his 
manner and appearance; he evidently labored under a good deal of excitement, and I thought 
his manner was defiant, and I may say insulting, to the court. 

Q. What was Judge Busteed’s manner and conduct to Hamilton upon that occasion.—A. 
I do not think that it was anything other than ajudge would exhibit under such circumstances. 

Q. Were you in court when Robert H. Smith, in the case of Town—a habeas corpus case— 
left the court-room.—A. Yes. 

Q. What was the manner and conduct of Robert H. Smith, upon that occasion, to the 

comt._A. He was very angry. He got up and left the court, said he would not practice 

in a court where justice was administered in that way, or words to that effect, I think. 

q. What was his manner towards the judge himself.—A. It was the manner of a man 
who used such expressions as that, very decided and peremptory in its offensiveness, I thought. 
You had taken the examination of the witness; he protested against it; you insisted upon it. 

Q. He denied my right, did not he, to examine the witness —A. I do not know that it 
was an express denial exactly. He insisted upon examining the witness himself. 

Q. There was no jury ; it was a habeas corpus case.—A. Yes ; I think it was. 

Q. Was the manner of Robert H. Smith insulting and brow-beating to the court, or was 
it not, upon that occasion.—A. I thought it was. 

Q. Were you in court in May, 1S6S, at Mobile, when the United States circuit court was 

held by Judge Busteed.—A. Yes. . . T 

Q. Do you remember the trial of the case of Peases. Dominick.—A. les, sir; 1 was 

the plaintiff’s counsel in that case. t , 

Q. What was the action.—A. It was an action by Pease, a citizen of Massachusetts, vs. 
Dominick, for the use and occupation of two houses and lots in Mobile. Dominick had 

purchased them at a confiscation sale. ,. . 

Q. At a confiscation sale by whose order.—A. By the order of the confederate district 

court, so called. r , , 

Q. Under whose personal direction.—A. Under the direction of the sequestrator. 


340 


Q. Who was the sequestrator.—A. Mr. John Little Smith, a brother to Robert II Smith. 

Q. Were you present when an altercation in that case occurred between this J. Little 
Smith and the Judge.—A. Yes. 

Q. State it.—A. Some question bad arisen about evidence as to the currency, the differ¬ 
ence in the values of confederate money, and you had ruled it adversely to Smith. The 
same question, I think, had been propounded to perhaps two witnesses, and the judge inti¬ 
mated to Smith that it was not proper to produce any more witnesses upon that point where 
the ruling had been adverse to him. Mr. Smith said to the court, “ What would be the con¬ 
sequence if 1 do.” Your reply was, “The consequence would be, I would commit you to 
jail for contempt of court. Mr. Smith replied, “That would not be very comfortable“you 
had better (I think the language was) not try it; that would not be comfortable.” 

Q. In that connection, did you see J. Little Smith converse with Robert H. Smith, his 
brother—A. Yes; not immediately, though. 

Q. What did you hear him say to Robert H. Smith, if anything.—A. He turned round 
and asked (whether it was of me or some one else by me) if the person had a pistol; I do 
not think it was addressed to me, though ; he was looking towards me, and apparently address¬ 
ing some one else; and he said, “Have you got a pistol?” I at once told him to stop 
indulging in anything of that kind ; he then turned around to his brother, Robert H. Smith. 

Q. What was the physical condition of Judge Busteed at this time.—A. It was not that 
of ability to do any business. It was after Judge Busteed had been wounded. I do not 
think his condition was such that he ought to have appeared in any court. 

Q. Do you not know, as a matter of personal knowledge, that his three wounds were then 
bleeding and matter issuing from them.—A. I know that they were still unhealed ; I know 
that you were in a condition then of nervous irritability, such that you ought not to appear 
in court. , 

Q. Did you hear Little Smith say anything else when he asked for a pistol.—A. No ; I 
do not know that he said anything else ; I do not think lie did ; he turned around and said 
something to his brother. 

Q. You do not know of whom he asked for a pistol.—A. I said I did not think he asked 
me; he turned round towards me and asked someone—who it was I cannot tell—“Have you 
got a pistol?” and I tried to stop him. He was a good deal excited. He then turned to his 
brother, who was standing, if I recollect right, about eight feet from him. I think his 
brother motioned to him to sit down; that is my recollection of it. 

Q. Was Judge Busteed in a condition of health to have gone into an examination of tes¬ 
timony in any salvage case at that time.—A. I think a great deal of this trouble has arisen 
from your condition at that time. You were not in a condition to try any case ; you ought 
not to have held court. I am not a physician, and of course do not express the opinion of a 
professional man; but it was evident that you were not in a suitable state of health to con¬ 
duct the trial of the salvage case at that time. 

By Mr. Eldridge : 

Q. Do you mean to say, as his manner was excited and irritable, that he did not conduct 
himself properly owing to his bad state of health.—A. No ; I don’t mean that. His ill health 
was such as necessarily to fatigue him and keep him in a condition that produced the very 
difficulty of not trying the salvage cases spoken of. 

Q. What difficulty ? You say it produced precisely the trouble out of which this case had 
grown ; did it produce this Hamilton matter and Smith matter.—A. No ; the Hamilton matter 
was prior to that a long while ; but I mean to say that the judge was not in a condition to 
hold court at all. 

Q. Do you know Charles Walsh.—A. Yes, sir. 

Q. Do you know the financial standing of the Bank of Mobile.—A- Yes, sir. 

Q. What is it.—A. It is very good ; it is one of the first banks in the State. 

Q. Are you an officer of the Bank of Mobile.—A. I am the counsel—the attornev of the 
bank. 

Q. Have been how long.—A. For several years ; before the war and since. 

Q. Did you bring with you any transcripts of the books from the Bank of Mobile, and 
have you got them with you.—A. Yes. 

Q. Will you produce them. 

(Witness here produced a file of papers.) 

Q. How do you know them to be transcripts of the books of the Bank of Mobile.—A. I 
compared them with the original entries on the book. There is a mark, my cipher, on each 
one of them. 


341 


Judge Busteed offered them in evidence and they were received, as follows : 


Richard Busteed in account icith the Bank of Mobile. 


Dr. 


Feb. 10,1868 

To check. 

$100 00 

Feb. 11,1868 

To check. 

400 00 

Mar. 17,1868 

To check. 

250 00 

Apr. 17, 1868 

To check _ 

526 25 

May 25,1868 

To check . 

2,957 50 



4,233 75 


Cr. 

Jan. 14,1868 
Mar. 21,1868 
Apr. 15,1868 
Apr. 24,1868 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

$793 75 
1,000 00 
1,000 00 
1,440 00 

4,233 75 


United States District Court for the Southern District of Alabama , in account. 


Cr. 


June 25,1866 

To check .... 

$14,583 63 

June 20, 1866 

By deposit.... 

$40,437 76 

June 26, 1866 

To check .... 

12 269 36 

June 23,1866 

By deposit.... 

3,086 06 

Feb. 16.1866 

To check_ 

3,362 47 

June 30,1866 

By deposit.... 

807 80 

April 19, 1866 

To check .... 

684 17 

Feb. —, 1866 

By deposit.... 

14,000 00 

April 20,1866 

To check .... 

12 00 

Apr. 19, 1866 

By deposit.... 

1,500 00 

April 22,1866 

To check .... 

3,938 74 

Apr. 20, 1866 

By deposit.... 

5,000 00 

April 24, 1866 

To check .... 

24 00 

May 21,1866 

By deposit.... 

18,567 97 

May 22,1866 

To check_ 

50 00 

Jan. 15, 1868 

By deposit.... 

1,000 00 

May 27,1866 

To check_ 

13,550 00 

Jan. 21,1868 

By deposit.... 

1,000 00 

J une 11,1866 

To check .... 

5,291 97 

Feb. 21,1868 

By deposit.... 

614 99 

June 12, 1866 

To check .... 

1,601 90 

Apr. 15, 1868 

By deposit.... 

1,000 00 

June 13,1866 

To check .... 

3,430 67 

May 14,1868 

By deposit.... 

250,048 92 

Dec. 19, 1866 

To check .... 

15,700 00 

May 14, 1868 

By deposit.... 

88, 556 63 

Mar. 14,1868 

To Willis & 


May 16,1868 

By deposit.... 

1,948 65 


Bannon.... 

99 00 




May 16, 1868 

To Thurber, 






Rutland & Co 

118 80 




May 16,1868 

To A. McKin- 






stry. 

1,829 85 




May 23, 1868 

To J. M. Hoi- 






lingworth ... 

6,923 20 




May 29,1868 

To J. Stan- 






wood. 

938 00 





To balance... 

343,161 02 






427,568 78 



427,568 78 





By balance... 

343,161 02 


United Stales District Court for the Middle District of Alabama, Richard Busteed, judge, E. 
C. V. Blake, clerk, in account with Bank of Mobile. 


Dr. 


Cr. 


June 

June 


3,1868 
12,1868 


To gold. 

$2,000 00 

Mar. 19, 1868 

By currency_ 

To gold. 

200 00 

Mar. 19, 1868 

By gold. 

To balance. 

16,410 75 

Mar. 23, 1868 

By deposit. 


18,610 75 






By balance. 


$15,471 75 
2,200 00 
939 00 


18,610 75 


16,410 75 



























































342 

N. If. Trimble in account with Bank of Mobile. 


Dr. 


Cr. 


Feb. 

8,1868 

To check. 

$68 50 

Feb. 

5,1868 

Feb. 

22,1868 

To check. 

290 00 

Feb. 

7,1868 

Feb. 

27,1868 

To check. 

70 00 

Feb. 

15.1868 

17.1868 

Mar. 

9,1868 

To check. 

2,500 00 

Feb. 

Mar. 

14.1868 

16.1868 

To check. 

55 00 

Feb. 

20, 1868 

Mar. 

To check. 

44 50 

Feb. 

21,1868 

Mar. 

21,1868 

To check. 

334 80 

Feb. 

24,1868 

Mar. 

30,1868 

To check. 

60 00 

Feb. 

25,1868 

April 

4,1868 

To check. 

35 00 

Feb. 

27,1868 

April 

14,1868 

To check. 

30 00 

Feb. 

29,1868 

May 

7,1868 

To check. 

1,350 00 

Mar. 

2,1868 

May 

13,1868 

To check. 

22 50 

Mar. 

3, 1868 

May 

14,1868 

To check. 

275 00 

Mar. 

9,1868 

May 

23,1868 

To check. 

180 00 

Mar. 

27,1868 

May 

25,1868 

To check. 

500 00 

Mar. 

28,1868 

May 

28,1868 

To check. 

967 70 

April 

11, 1868 

May 

30,1868 
1,1868 

To check. 

245 70 

April 20,1868 

June 

To check. 

2,250 00 

May 

9, 1868 

June 

8,1868 

To check. 

50 38 

May 

12,1868 

June 

11,1868 

To check. 

94 50 

May 

19,1868 

June 

29,1868 

To check. 

118 13 

May 

28,1868 

July 

1,1868 
7,1868 

To check. 

583 10 

May 

30,1868 

July 

To check. 

1,600 46 

June 

1,1868 

July 

8,1868 

To check. 

50 00 

June 

1,1868 

July 

9, 1868 

To check. 

843 96 

June 

2,1868 

July 

10,1868 

To check. 

150 00 

June 

8,1868 

July 

24,1868 

To check. 

400 00 

June 

10,1868 

Aug. 

15,1868 
3,1868 

To check. 

250 00 

July 

3,1868 

Oct. 

To check . 

20 50 

July 

11,1868 

Oct. 

6,1868 
12,1868 

To check. 

300 00 

July 

22,1868 

Oct 

To check. 

50 00 

Aug. 

8,1868 

Oct. 

17.1868 

23.1868 

To check. 

32 90 

Aug. 

16,1868 

Oct. 

To check. 

75 00 

Aug. 

21,1868 

Oct. 

24.1868 

30.1868 

To check. 

145 00 

Aug. 

28,1868 

Oct. 

To check. 

25 00 

Nov. 

13,1868 

Nov. 

3.1868 

4.1868 

To check. 

300 00 

Dec. 

3,1868 

Nov. 

To check. 

25 00 

Dec. 

5,1868 

Nov. 

19,1868 

To check . 

1,100 00 

Dec. 

9,1868 

Dec. 

5, 1868 
8,1868 

To check. 

108 00 

Dec. 

14,1868 

Dec. 

To check. 

23 00 

Dec. 

19,1868 

Dec. 

12,1868 

To check. 

143 00 

Dec. 

21,1868 

Dec. 

15.1868 

16.1868 

To check. 

790 00 

Dec. 

22,1868 

Dec. 

To check. 

1,914 00 

Dec. 

23,1868 

Jan. 

5,1869 

To check . 

175 00 

Dec. 

24,1868 

Jan. 

8,1869 
13,1869 

To check. 

500 00 

Dec. 

26,1868 

Jan. 

To check. 

93 00 

Dec. 

28,1868 

Jan. 

15,1869 

To check. 

50 00 

Dec. 

29, 1868 

Jan. 

16,1869 

To check. 

1,000 00 

Dec. 

30,1868 

Jan. 

27,1869 

To check. 

Balance. 

300 00 
3,729 02 

24,317 65 

Jan. 

Jan. 

2.1869 

8.1869 


By deposit- 

By deposit- 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit.... 
By deposit.... 

By deposit-- 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit.... 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit_ 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit. 

By deposit_ 

By deposit. 


By balance.. 


$100 00 
100 00 
450 00 
150 00 
180 00 
115 00 
315 00 
610 00 
490 00 
400 00 
1,250 00 
165 00 
370 00 
515 00 
165 00 
1,050 00 
320 00 
190 00 
115 00 
180 00 
1,660 00 
340 00 
960 00 
1,426 00 
255 00 
650 00 
170 00 
785 00 
735 00 
50 00 
53 15 
220 00 
265 00 
75 00 
1,030 00 
2,020 00 
300 00 
190 00 
687 50 
800 00 
210 00 
450 00 
400 00 
345 00 
155 00 
290 00 
1,080 00 
635 00 
750 00 
101 00 


24.317 65 


3,729 02 


Dr. 


N. IV. Trimble , clerk, in account with Bank of Mobile. 

Cr. 


To check. 

$594 00 

Feb. 5,1868 

By deposit. 

$693 00 

To check. 

1,914 00 

Junell, 1868 

By deposit. 

608 34 

Balance. 

707 34 ! 

Dec. 16,1868 

By deposit. 

1,914 00 


3,215 34 



3,215 34 




By balance. 

707 34 

































































































































343 

Laurence JVorrall in account with Bank of Mobile. 


Dec. 

24,1866 

To check. 

$4,975 12 

Dec. 

14,1866 

By J.H. Masson. 

$2,048 80 

Mar. 

2,1867 

To check. 

187 50 

Dec. 

26,1866 

By deposit. 

5,742 57 

April 

1,1867 

To check. 

339 50 

Feb. 

4,1867 

By deposit. 

1,210 00 

April 

19,1867 

To check. 

2,000 00 

Feb. 

7,1867 

By deposit. 

1,300 00 

April 

22,1867 

To check. 

826 85 

Dec. 

6,1867 

By deposit. 

1,065 00 

June 

12,1867 

To check. 

1,972 40 

Dec. 

21,1867 

By deposit. 

600 00 

Dec. 

20,1867 

To check. 

50 00 

Jan. 

8,1868 

By deposit. 

350 00 

Jan. 

3,1768 

To check. 

273 65 

Jan. 

15,1968 

By deposit. 

200 00 

Jan. 

4,1868 

To check. 

60 00 

Jan. 

20,1868 

By deposit. 

200 00 

Jan. 

14,1868 

To check. 

1,000 00 

Jan. 

21,1868 

By deposit. 

200 00 

Jan. 

21,1868 

To check. 

1,000 00 

Jan. 

31,1868 

By deposit. 

550 CO 

Feb. 

5,1868 

To check. 

289 85 

Feb. 

21,1868 

By deposit. 

2,000 00 

Feb. 

22,1868 

To check. 

614 99 

Feb. 

22,1868 

By deposit. 

986 10 

May 

19,1868 

To check. 

3,404 00 

Mar. 

9,1868 

By deposit. 

2,500 00 

May 

22,1868 

To check. 

1,900 00 

May 

7,1868 

By deposit. 

600 00 

July 

1,1868 

To check. 

1,750 90 

May 20,1868 

By deposit. 

350 00 

July 

6,1868 

To check. 

258 61 

May 25,1868 

By deposit. 

400 00 

Nov. 

24,1868 

To check __ 

427 00 

June 27,1868 

By deposit. 

600 00 

Dec. 

13,1868 

To check. 

975 00 

Nov. 19, 1868 

By deposit. 

1,400 00 

Dec. 

17,1868 

To check. 

177 00 

Nov. 24, 1868 

By deposit. 

1,500 00 



Balance. 

2,121 00 

Nov. 27, 1868 

By deposit. 

800 00 




24,602 47 




24,602 47 







By balance. 

2,121 00 


By Mr. Semple: 

Q. Did not Mr. Walsh furnish you with a transcript of the account of Walsh, Smith & 
Co. with Judge Busteed—A. No; but he makes the statement in his letter that Judge 
Busteed has no account with the firm of Walsh, Smith & Co. 

By Mr. Smith : 

Q. Are you friendly with Peter Hamilton.—A. No ; I am not really unfriendly, hut I am 
not friendly. 

Q. Are you friendly with J. Little Smith.—A. Yes; I am not unfriendly with Little 
Smith. 

Q. Are you on anything more than par speaking terms with him.—A. I do not know that 
I am. 

Q. Are you and myself on speaking terms.—A. No, sir. 

Q. Are you in the habit of visiting socially the houses of the families of the lawyers of 
Mobile.—A. I do not visit anywhere socially. 

Q. You do not visit the houses of the lawyers generally at Mobile.—A. I do not visit 
anywhere. 

Q. Are you in partnership with Andrews.—A. No. 

Q. Did you publish a partnership with him just before he left there.—A. I did ; merely 
for bankruptcy business. 

Q. Have you ever published a dissolution of that partnership.—A. The publication was 
withdrawn. It did not continue. There never was any dissolution because there never was 
any business under the firm. Andrews w r ent off and paid no attention to it, and of course 
it ceased. 

Q. What business did the marshal have. How could he have any right to see to whether 
cotton was sold or not. What rights had he by which he could appear to get their fleece 
cotton.—A. It was a question of costs. The motion was to set aside the sale on the ground 
of fraud. It w-as for the purpose of getting his commission and relieving himself from the 
imputation of fraud ; and that he employed counsel; that is all. I appeared for nobody 
else but the marshal, to set aside the sale; I did charge the marshal a fee. 

Q. The question w r hich arose between you and Peter Hamilton, which caused some irrita¬ 
bility, was a question of dispute as to whether he had offered a paper in evidence, was it 
not.—A. That question came up, he saying that it was a private paper. I have no idea 
that Mr. Hamilton would tell an untruth in the matter, and I will not undertake to contradict 
him, except that he insisted that it was a private paper, and I insisted that it was a paper 
in possession of the court. 

Q. Are you and Judge Dargan on friendly terms.—A. We have been unfriendly; wehave 
had a fight. 


























































344 

Q. Did you and Judge Campbell speak up to the time that lie went upon the Supreme 
bench of the United States.—A. Yes. 

Q. Would he practice in your court —A. Yes. 

Q. Up to the time he went upon the bench.—A. Yes. 

Q. Was not Judge Busteed, to the witness that Hamilton was examining, overbearing, 
rude and dictatorial.—A. Judge Busteed did what was not practiced with us; he examined 
the witness himself. The judges have always held in Alabama that they had the authority 
to doit, but that has not been practiced, and the catechising of a witness by the judge did 
have the appearance of being arbitrary. 

Q. He took the examination of Hamilton’s witness out of his hands, did he not.—A. He 
said he would examine this witness if Hamilton did not. 

Q. Yes, but did not he take the examination of Secor and other witnesses out of Hamilton’s 
hands.—Yes ; I think so. 

Q. Was not his manner rude, oppressive, and dictatorial to the witnesses.—A. I do not 
think it was. The matter impugned Secor upon the allegation that he had made ajurat and 
that no oath had been administered ; any examination of that sort would be in a measure 
offensive to a witness. 

Q. Judge Busteed was taking side in favor of the sale, was he not.—A. No; not that 
I saw. 

Q. Did Hamilton stop putting any more questions to the witness because of the rude and 
offensive and dictatorial manner of the judge.—A. I do not know that he did. 

Q. He did stop the examination, did he not —A. I think so. 

Q. Now, did you appear in court the day of the examination in Towns’s case.—A. I do 
not recollect that the case occupied two days. 

Q. Do you not recollect that Judge Busteed handed a paper to a man by the name of 
May and asked him if that was his affidavit, and the man commenced looking upon it, and 
Judge Busteed jerked it from his hand and put it behind his back, and said “Now answer,” 
without allowing him to look at the paper.—A. No. 

Q. And that I remonstrated against such proceedings, and said, “How, if the court 
please, can a man answer whether it is his affidavit without being permitted to inspect it?” 
Do you recollect that.—A. I have a very indistinct recollection about the matter, as I said 
in my opening examination, about all the details of it; my attention was only called to the 
culminating of it. I do not recollect those circumstances you speak of. I know that a man 
by the name of May, if I recollect right, was the prosecutor of Towns. 

Q. Do you recollect, when I was remonstrating as to the possibility of a witness answer¬ 
ing as to whether it was his paper without being permitted to see it, Judge Busteed, in a 
very peremptory and insulting manner, ordered me to take my seat; and in reference to that 
I said that these proceedings were a mockery of justice, and that my self-respect would 
not allow me to participate any further in them.—A. I believe that is precisely what you 
said; but I do not recollect the other circumstances. 1 think I do recollect that he told 
you to take your seat. 

Q. Mr. J. Little Smith was of counsel in the case he was trying; the proof was as to 
what the rent of the house brought in confederate money, was it not.— A. That was one of 
the questions that were raised, and which I believe he wanted to show ; I had shown what 
it had rented for, and had shown by Mr. Bass and by a Frenchman that the value of it was 
the same during the war. 

Q. Was not this the exact question, then, that Little Smith desired to prove, that it was 
not the same during the war for United States currency or gold and silver, and that Judge 
Busteed refused to allow him to prove.—A. No; I do not recollect that. Smith, I think, 
insisted that if his client was liable at all he was only liable for the amount of the rent in 
confederate money, and the judge insisted that he was liable for the amount of the rent 
without reference to the value of confederate money. 

Q. Did not Little Smith lay down two propositions: first, that he was liable for the rent 
only in the value of confederate money; and second, if that was not correct, that he was 
only liable for what the house would have brought in good money. And was there not con¬ 
siderable discussion as to what money meant.—A. There was considerable discussion as to 
what money meant. Smith insisted, inasmuch as the rent had been in confederate money, 
that he was only responsible for it to the value of the confederate money; and I insisted, as 
lie had taken the house, that he must be liable for the rent of it in legal currency; and 
Smith had insisted that if his first proposition was not correct he was at least only liable for 
it in good money. 

Q. Did not Judge Busteed say, when he was asking the witness what the property had 
rented for in treasury notes, did he not say that, “ This is the third time you have admitted 
that, and if you repeat it I will send you to jail.”—A. I do not think he said it as directly as 
that, but perhaps you are right about his calling this the third witness which Mr. Smith had 
examined on this point. He told him that the court had already passed upon it and that 
he must not repeat the question. Mr. Smith then said to the judge, “ What would you do 
if I did 7” 

Q. Was not the judge’s manner towards Little Smith that of insult, gross insult.—A. I 
do not know. 


345 


Q. You say that Little Smith turned and asked some one if he had a pistol.—A. Yes. 

Q* ^‘d you not hear me say to him, “ \ou are acting very wrongly; go and take your 
seat and stop all this.’*—A. I did not hear what you said. 

Q. You saw from my manner that it was one of rebuke towards him, did you not.—A. Yes, 
sii , I could not say that it was one of rebuke, but tbe idea was, stop. I observed it because 
I had been trying to stop him, and it struck me that you were doing so too. 

By Judge Busteed : 

Q. Look at that paper and say if you know in whose handwriting it is.—A. It is in the 
handwriting of Robert H. Smith. 

(Judge Busteed proposed to put this in proof in connection with the testimony of this wit¬ 
ness. It was received and read, as follows:) 

“MOBILE, February 9, 1867. 

“ SlB : I regard the occurrence of last spring in the case of Towns as a breach of the decorum 
of the court, and regret it; and I respectfully ask a recision of the order excluding me from 
practicing in the United States court; and 

“I have the honor, sir, to be, respectfully, 

“ROBERT H. SMITH. 

“Hon. Richard Busteed, 

“Judge of the District Court of the United States 

for the State of Alabama.''' 

By Mr. Semple : 

Q. How did you come to make the memorandum or statement which you made of the con¬ 
versation ot Morris.—A. I did it at the request of Judge Busteed. 

Q. You said that Morris said a few words, when Judge Busteed replied, “Write me on 
any subject ot which you wish to speak to me of, and I will give you my attention by letter; 
I cannot give you any interview.” Now state to the committee what those few words were.— 
A. I did not understand what was said; I merely saw them together; I only heard Judge 
Busteed from the fact of his turning round. 

Q. You did not hear the words, then, which Morris made use of.—A. No. 

Q. Had you had any conversation with Judge Busteed in relation to the Jacob Wilson 
matter before this conversation took place between Judge Busteed and Morris in Harris & 
Hoyt’s store.—A. No; it was after that I had the conversation with him—same day. 

Q. Did you ask Judge Busteed what it was that Morris said to him at the time they were 
talking together in Harris &. Hoyt’s store, or did he tell you.—A. No, he did not; it was 
a matter 1 did not want to get into, and I only responded to the requests that were made to 
me directly about it. 

Q. I understand, as a lawyer, the importance of knowing the question or statement to 
which words used are a reply; and you did not ask Judge Busteed what the words were 
which Morris had addressed to him.—A. No, sir; not at the time; I had no idea that there 
was anything in it. It was after that that these other things occurred. 

Q. You say that “Judge Busteed told me of an interview that he had with Mr. Morris, 
Johnson, and Powell, at his office in Mobile, of Jacob Wilson’s statement to him, &e ;” what 
did you mean by “ and so forth.”—A. My recollection is that Judge Busteed had stated that 
Jacob Wilson had told him that Morris had made him a present of $3,U00. 

Q. Did he say anything about $5,000.—A. No. 

Q. He did not tell you anything but $3,000.—A. No; I never knew about the $5,000 until 
the other day in Mobile; I heard of Morris’s testimony in Mobile—the testimony which was 
taken before this committee. 

Q. Please state to the committee what it was that Judge Busteed told you in relation to 
the interview between Morris, Powell, and himself, in his office at Mobile.—A. My recollec¬ 
tion is, that everything I could think of when I sat down to write that was put down in that 
paper; really I had no idea that things would take this shape, and at the judge’s sugges¬ 
tion I wrote down fully what then appeared to me of importance. 

By Mr. Eldridge : 

Q. What motive did Judge Busteed assign for having you take that down.—A. He says, 
“You see that fellow is following me up ; they are trying to catch me,” or something of that 
sort. The precise language I do not pretend to give, but that is the idea. “ I want you to 
bear in mind I am determined to keep away from that man while I am here.” That was 
about his language, to the best of my recollection. 

Q. How long had the judge been in Montgomery.—A. I do not know ; I cannot recollect. 

Q. When did you first see him during that visit of his to Montgomery.—A. I think that 
was the time when I first met him at that visit in Montgomery. 

Q. Did he tell you, at that first interview with him, that he did not w r ant to see anybody 
in Montgomery.—A. Yes. 

Q. Had you seen Morris then.—A. No. 

Q. Do you know Morris well.—A. Not well; I should know him when I saw him. 

Q. Did he assign any reason for not wanting to see anybody in Montgomery.—A. No ; if 


346 


he did I do not recollect it. I invited him to dinner then, at that time. My impression is 
that the legislature was in session. We adjourned frequently about half-past 1 o’clock.. I 
went down and found the judge in the city and asked him to go round and take dinner with 
me. 

Q. Did you have others to dinner at that time.—A. No. 

Q. Did he mention any reason at all for not wanting to see anybody.—A. No, sir. After 
dinner I went up to J. Q. Smith’s office with Judge Busteed. In Smith’s office there were 
two rooms—one a back room, very nicely furnished, and the front room, where his office was ; 
the judge was in that back room. 

Q. Was anything said about a case of Morris’s being in court—a case in which he was 
interested.—A. No, sir. / 

By Mr. Semple: 

Q. Do you know the handwriting of Josiah Morris—A. I think I know his handwriting. 

Q. Look at the two checks now handed to you and say if they are in his haudwrting.— 
A. I think they are. 

Q. If Judge Busteed had told you that Wilson stated to him that Morris had made him a 
present of $5,000, and your recollection being fresh at tbe time, you certainly would not 
have put it down as being $3,000.—A. No, sir ; I put it down just as it occurred then ; as 
you will see from the way in which it is written, it is evident that the paper w r as written 
currente calamo. 

By Mr. Eldridge: 

Q. Do you know of any fact, either within your own knowledge or by conversation with 
Judge Busteed, or by information from him, that shows, or that would tend to show, that he 
acted corruptly as a judge, or that he accepted any bribe, or received any costs or fees in 
suits pending before him, where he ought not to have received them.—A. No, sir; I 
know of no fact tending to throw light upon the subject; I know nothing showing anything 
like corruption or dishonesty on the part of Judge Busteed. 


Monday, February 22, 1869. 

Alexander McKinstry appeared before the committee and made the following explana¬ 
tion in reference to his testimony: 

Referring to that portion of my testimony where it speaks of not visiting any one, I wish 
to state that in 1862 I went into the army, leaving Mobile, and remained until the surren¬ 
der, which was made in 1865; I had no house in the city until November or December, 1865. 
A few days, or a few weeks, after I moved to my house, my oldest daughter died. In the 
spring I went down to my place at Chunchula, which is some 20 miles from the city, on the 
railroad, and that is my home to this time. Last November I came into the city, and since, 
I have been absent in Montgomery and in the courts to an extent that, if I had had any desire 
to, I could not have visited during this winter, though I have made some social calls. My 
course is to go out in the afternoon at 4 or 6 o’clock, and come in in the morning at 9 o’clock. 
The railroad distance is 20 miles, and there is no other means of communication. 

Washington, February 16, 1869. 

Milton J. Saffold sworn and examined: 

By Mr. Semple : 

Question. Will you detail to the committee any conversation which you ever had with 
Judge Busteed in relation to the payment or gift of any money by Josiah Morris to Jacob 
Wilson, and state, as nearly as you can, the manner in which the conversation was brought 
about, and what was said in that conversation, and when and where it took place.—A. I 
think in the latter part of January, 1867, or the first part of February, 1867,1 met with Judge 
Busteed in the Capitol building in Washington city. Judge Busteed told me that he desired 
to have a personal interview with me in reference to a matter that affected very nearly and 
very materially a personal friend of mine in Alabama. A good deal was said iu reference to 
the proposed interview, which I have now forgotten; but the result of it was that, at his 
solicitation, I agreed to meet him on the next day, at an appointed hour, at Willard’s Hotel, 
at his room. I went to Willard’s Hotel, and had a private interview with Judge Busteed at 
his room. Judge Busteed detailed to me at considerable length the circumstances connected 
with his judicial action in a certain cotton case pending in his court, in which Josiah Morris 
was a party. My recollection ot the details of that conversation is very indistinct, except so 
far as relates to what I understood at the time to be the material points or the gist of the 
conversation. As nearly as I can recollect, he told me that he had decided a cotton case 
involving some considerable amount of money adversely to Morris, aud that Judge Samuel 
F. Rice, his attorney, had sought to obtain from him a bill of exceptions. He detailed to me 
much that was said and done in reference to the action taken by the parties in undertaking 
to relieve themselves from the result of his decision; but I can only recollect that they pro” 
posed to do it by a bill ot exceptions ; that that bill of exceptions was not signed at Mont¬ 
gomery, and Judge Busteed went to Mobile, his residence. Some time subsequent to that— 


347 


how long I cannot remember—Morris went down to Mobile to see him in reference to this 
case. He said he had an interview with Morris, and, I think, he detailed all the facts and 
circumstances connected with that interview; many of them I have forgotten. But after 
the interview had concluded, I think, Morris and Jacob Wilson—a man whom Judge Bus- 
teed represented as a person in whom he had great confidence, and who was very faithful to 
him—left the room together; and at some subsequent time—when I do not remember—Judge 
Busteed learned that Morris had given to Wilson, at Mobile, either $2,000 or $3,000 of $5,000 
that was to be given, and the balance ot the $5,000 was to be given at Montgomery, where, 
I think, Judge Busteed proposed to go in a few days. I think Judge Busteed told me that 
he understood this to be an effort on the part of Morris to iufluence his decision in the matter 
by the use of money; and after having related all the facts to me—many of the details of 
which I have forgotten—he told me that he had stated the whole case to me, and, having 
confidence in the suggestions I might make to him as to the proper course he should pursue, 
he desired me to state candidly what should be his action in the premises. I told him that I 
could advise, but as it seemed to me it would be necessary, in my own case, to protect me 
against the consequences which might result from such a course, and I asked him if Wilson 
had the money. My recollection is that he said he had, or that the money was not spent. I 
then told him I would, when I returned to Montgomery, take an early occasion, or would 
make one, to have the parties (Wilson, Rice, aud Morris) before me in the presence of some 
substantial disinterested witnesses, and I would require Wilson to pay the money back to 
Morris in my presence; and if I thought that the purpose of having the public of Alabama to 
understand that his judicial decisions or actions could not be controlled by money was suffi¬ 
ciently accomplished by reprimanding Morris, I would do it; but if not, with a view to put 
him in a proper light before the people of Alabama, that I would punish Morris to the extent 
of the law, the purpose being to give sufficient notoriety to the case to prevent any such 
occurrence in the future, and to place him in a proper position. 

Mr. Eldridge. You advised him to do this. 

Witness. Yes. The judge said, I have forgotten exactly what, in response to that, but as 
nearly as I can recollect the substance was, that he had had nothing to do with the payment 
of the money, and he did not propose to have anything to do with refunding it; but he 
intended to see that the parties did not accomplish the purpose for which they sought to use 
the money; that if they did not get the money back, they should not get the results of it. 
Some further conversation ensued between Judge Busteed and myself, but no definite con¬ 
clusion was arrived at, as I understood, and we separated. That conversation was in Judge 
Busteed’s private room. I did not understand it to have been confidential. My idea was 
that Judge Busteed desired to inform me of the facts connected with the matter that he con¬ 
sidered a very unpleasant one, and to advise with me as to the course he should pursue. 
Some time after, I think in the spring or summer of last year, (1868,) I met Major Semple 
out in the hall of the building. Not having seen him before since I had arrived in the city, 
the conversation turned upon the matter of Judge Busteed’s official course, in Alabama; aud 
I do not know but he showed me the specifications. He asked me, I think, if I knew any¬ 
thing in reference to this matter. I told him that I knew nothing except the conversation 
which I had just had with Judge Busteed himself; and I then related to him substantially 
what I have to you. I heard nothing more of the matter until the other day, when I under¬ 
stood that I was to come here. So far as I know, these are the material facts that I can 
testify to. 

By Mr. Semple : 

Q. Will you state whether you had seen Judge Busteed before that time; and if so, on 
what business he seemed to be engaged, and what was the occasion of his visit to Wash¬ 
ington.—A. I understood, from Judge Busteed himself, that his purpose here was to prevent 
the confirmation of Robert W.- Healy as marshal of the United States district court ot 
Alabama, and to retain in the office of marshal John Hardy. 

Q. Now, did Judge Busteed express to you any opinion or apprehension in relation to 
the use which might be made against him of this payment to Jacob Wilson.—A. I do not 
recollect that Judge Busteed did express, in words, any apprehension that this transaction 
would be used to his injury. 

Q. Was there anything in his conduct, in relation to this matter, which tended to show 
that he entertained such an apprehension ; and if so, what was it.—A. The only facts from 
which the committee could draw an inference would be the anxiety of Judge Busteed to 
have an interview with me in reference to this matter. I had made arrangements to go to 
Baltimore on business, and I was quite reluctant to forego my engagements; but, on Judge 
Busteed’s earnest solicitations—representing that it affected very nearly a personal friend of 
mine, and that he much preferred to postpone further disclosures in reference to the matter 
until we could have a more deliberate interview at his room—I agreed not to go to Balti¬ 
more, and to attend to the interview. 

Q. In that first conversation did he state who the person was whom it affected ; or did he 
make that statement at his room.—A. I think he did, at length; but, at first, be did not. 
When he first approached me at the Capitol, the day before the interview at his room, he 
represented to me that there was a matter about which he proposed to talk with me, very 
nearly affecting myself; that was the impression which was produced upon my mind. I 


348 


remember well asking him if it was a matter personal to myself, to which he replied, “ No.” 
Said I, “Is it a matter affecting me privately?” to which, I think, he said, “ No.” “ Does 
it affect any of my relatives or connections at Montgomery ?” I asked ; to which he finally 
said “No.” My mind ran over the various connections I had there, and I then asked him, 
finally, whom it did affect; and I think, upon that occasion, he said it affected Josiah Morris. 

Q. When was that interview.—A. Some time in January or February, 1867. 

Q. Are you a very intimate friend of Morris. — A. No ; not especially so, perhaps. He is 
a political and personal friend of mine; and from this fact Judge Busteed may have sup¬ 
posed that he was an intimate friend of mine. 

Q. Did he in his conversation disclose to you that he so thought.—A. Not more than I 
have said, sir. 

Q. In relation to the matter of securing the rejection of Healy’s nomination before the 
Senate, was there any complaint made by Judge Busteed of your indifference in that matter.— 
A. Yes. 

Q. State the conversation between you and him.—A. On the morning in question Gover¬ 
nor Smith and myself, I think, were coming from Secretary Forney’s room and met Judge 
Busteed as we came out of the door or not far from the door. He approached us in a very 
cordial way. (This is what went before the first conversation of which I have spoken. 
Governor Smith was not present in this private conversation at Willard’s at all.) Judge 
Busteed went with Governor Smith and myself into Secretary Forney’s room, and there, in 
the presence of several senators—two or three, I don’t know how many—he stated the facts 
connected with the removal of Hardy and the nomination of General Healy, and said those 
things that were calculated to accomplish the purpose of retaining Hardy in office. He 
frequently alluded to Hardy’s faithfulness, his integrity, his efficiency as an officer, and to 
his loyalty; and he took occasion to appeal to Governor Smith and myself to sustain him. 
I said but little or nothing. Finally, Judge Busteed referred in pretty strong terms to 
Hardy’s connection with the Union party in Alabama during the war, to his being a Union 
man, and he appealed directly to me to know if he was not so considered; to which I 
replied, I believed Hardy was considered a Union man during the war. From Forney's 
room we went into the consultation room of the senators, in the rear of the Senate chamber, 
and there a similar interview was had; but I lagged behind a little, and did not take the 
interest in it that I would have done under different circumstances. As we passed out of 
the consultation room, on this side of the Capitol wing, I was a little behind ; and Judge 
Busteed fell behind and asked me why I was so indifferent in the matter, if there was any 
trouble between Hardy and myself; to which I think I replied, no. I think this same con¬ 
versation was had in reference to my relations to the district attorney, J. Q. Srnbh, to whom 
I was not friendly—we did not speak. But Judge Busteed talked to me in reference to the 
matter. I told him I was perfectly willing to speak to Smith , and the result was we did 
speak, and we went into a restaurant together—William H. Smith, now Governor of Ala¬ 
bama, Judge Busteed, John Hardy, and myself, and, I think, J. Q. Smith. The person with 
whom the reconciliation was had was J. Q. Smith; and then we went up stairs, when this 
conversation ensued between Judge Busteed and myself as to the private interview I was to 
have with him at his room at Willard’s. 

Q. Do you know whether there was at that time an application also pending for the re¬ 
moval of James Q. Smith from the office of district attorney, and whether that was the busi¬ 
ness he was here upon ; do you know this from Judge Busteed.—A. I do not know that I 
do; I know what my impression was, but I cannot state any particular sources of informa¬ 
tion I had it from; I know that in the conversation Judge Busteed had with senators in 
Secretary Forney’s room he said that the purpose of this movement against Hardy was to 
deprive him of the officers on whom he could rely and surround him with men inimical to 
him and virtually emasculate his court. 

Q. Did he state that Healy was inimical to him, or would be —A. He stated that the pur¬ 
pose was to surround him with men who were inimical to him, and that it would emasculate 
his court. 

Q. How would it emasculate his court.—A. I suppose his idea was that the officers sought 
to be appointed would not co-operate with him. and would not obey his orders, and that it 
would render his court more inefficient and powerless. 

Q. Did he use the term “emasculate.”—A. I do not know whether he did; that was the 
idea. As I said, my recollection of details is very indistinct. 

Q. You understood, then, from his general conversation, that the object, as he considered, 
was to surround his court with men hostile to him, and to make his court inefficient.—A. 
That was the ground on which he based his opposition. 

Q. The subject-matter was the removal of Hardy and the confirmation of Healy.—A. 
Yes. 

By Judge Busteed: 

Q. Have you ever had more than one interview with Judge Busteed at Willard’s in a pri¬ 
vate room.—A. I do not remember any other. 

Q. Are you not mistaken when you say that you and I were alone; were not James Q. 
Smith and John Hardy both present at the interview to which you have referred.—A. They 


349 


were when I first went in; I did not think that material, and therefore I did not state it; 
hut they went out and our interview was private. 

Q. Are you not mistaken in the last part of your answer also.—A. No, I am sure I am 
not. 

Q. James Q. Smith was then district attorney.—A. I think he was. 

Q And is it not true that James Q. Smith, during the entire rebellion, was notorious for 
his loyalty.—A. I do not know that lie was; I could state facts. 

Q. You had had some difficulty with James Q. Smith.—A. I have. 

Q. If I recollect rightly, I was in your house at Montgomery once, was I not.—A. I think 
so. 

Q. And James Q. Smith was there.—A. I believe he was. 

Q. He brought me there.—A. Yes. 

Q. Do you recollect when that was.—A. It was on the occasion of your visit to Mont¬ 
gomery—I think in November, 1865, during the session of the legislature. 

By Mr. Woodbiudge: 

Q. Your residence is at Montgomery.—A. Yes; I have been in Washington city for the 
last three years—since January, I860, more or less. 

Q. Are you connected now with the courts of Alabama in any way as judge.—A. I am not 
now ; I am supervisor of internal revenue for the State of Alabama. 

Q. During the time that Judge Busteed held the district courts of the United States in 
Alabama, were you present at his court.—A. I was present at the first court in which Judge 
Busteed presided in Montgomery, in the fall of 1865; I discontinued my practice in March, 
1866. 

Q. Then you were only present at one term of the court.—A. Only one. 

Q. Was there any business done at that term of the court, the fall term of 1865.—A. 
I think there was, some. 

Q. Do you, of your own knowledge, know of any act of the judge in his official capacity 
that would indicate corruption in the duties of his office.—A. I do not; I have been away 
from the State three years, and it would be impossible for me to know. 

Q. Do you know anything of the judge receiving presents.—A. I do not know anything 
of my own knowledge. 

Q. Do you know anything by information from him.—A. Nor by information from him. 
By Mr. Eld ridge : 

Q. When you advised Judge Busteed to have the money returned by Jacob Wilson, did 
he assign any reason for not having it done.—A. As near as I can recollect, if he assigned 
any reason at all it was that he had had nothing to do with the payment, and he proposed 
to have nothing to do with refunding; I think that was about the substance of what he said. 
Beyond that he assigned no other reason that I now recollect. 

Q. Did I understand you correctly that Judge Husteed told you .that the money was not 
yet spent by Wilson, but was where it could be returned.—A. I think I so understood him. 

Q. Can you state particularly what he said upon that subject.—A. I asked him if the 
money had been spent by Wilson, or if it was where it could be got at; to which he replied 
that it had not been spent, and could be got at. 

Q. Do you know where Jacob Wilson was at that time.—A. No; I did not know Jacob 
Wilson at all; I only knew him from the conversation I had with Judge Busteed; and I 
cannot say I knew where he was. 

Q. Did the judge tell you in that conversation, or in any subsequent one, that he believed 
the purpose of Morris in paying that money to Wilson was to bribe him, (the judge.)—A. I 
think he did. It was the whole purport of the conversation, as I understood it. 

Q. Y r ou said something about a certain portion of the money having been paid at Mobile, 
and that the balance was paid or to be paid at Montgomery ; state precisely how you want 
to be understood in reference to that.—A. I understood Judge Busteed to say that a certain 
proportion of the $5,000—either $2,000 or $3,000, I cannot remember which—was paid at 
Mobile, and the balance was to be paid at Montgomery. 

Q. Was it to be paid after the time of your conversation.—A. No ; after the time of the 
payment in Mobile. 

Q. Did you not understand from the judge that the $5,000 had been actually paid to Jacob 
Wilson.—A. I did not so understand. 

Q. How did you understand that.—A. I understood that $2,000 or $3,000 had been paid at 
Mobile, and that the remaining $2,000 or $3,000 was to be paid at Montgomery, when Judge 
Busteed and others went to Montgomery. 

Q. Did you understand that they did or did not go to Montgomery.—A. My recollection 
is that Judge Busteed told me he did go to Montgomery a day or two after. 

Q. Did you understand that the balance of the money was paid.—A. No ; I did not under¬ 
stand whether the balance of the money was paid or not. My impression has always been, 
since that conversation with Judge Busteed, that it was either $2,000 or $3,000 that had 
been paid. If he told me I have entirely forgotten. 

Q. When did Judge Busteed tell you that he first arrived at the knowledge of the payment 
of that money.—A. I cannot recollect. 


350 


Q. Did lie express himself so that you got any idea of any period within which he derived 
that knowledge ; did he say, for instance, whether he knew it when he went to Montgomery.— 
A. I really could not say. My idea was that he had heard it before he came here. 

Q. You say he expressed his opinion of Jacob Wilson as a man in whom he had very 
great contidence. — A. Yes; I have said all he said to me in reference to Jacob Wilson. He 
said he looked upon Jacob Wilson as a man of remarkable faithfulness to him, that “ he is 
as faithful to me as my wife.” The judge used that expression in regard to him. 

Washington, February 17, 1869. 

IIenry C. Semple sworn and examined. 

Question. State if you know anything tending to show Judge Busteed to be corrupt, or 
that he has taken a bribe or present contrary to the statute, or that he has shared in fees, 
costs, or allowances in any case pending in his court. 

(Judge Busteed objected to Mr. Semple being examined as a witness at this stage of the 
case, for the reason that he had been present during the examination of all the witnesses, 
and was thus enabled to give such shape to his testimony as would make it conform to what 
he had heard from others. He insisted that Mr. Semple should have been examined at the 
first, if at all. He also objected to Mr. Smith being present to hear Mr. Semple’s testi¬ 
mony, if Mr. Smith was to be examined as a witness. 

Mr. Eldridge overruled the objection, and stated that witnesses are always allowed to be 
present unless excluded by order of the court. He knew no reason wiiy these gentlemen 
should not be examined, with the privilege to Judge Busteed to cross-examine them with 
regard to their feelings and as to the part they took in the case. 

The question was repeated to the witness. 

Answer. In the course of this investigation, while Judge Chilton w 7 as being examined as 
witness, he called the attention of the committee to an order of distribution, printed in the 
transcript or record of case No. 163, being the case of Josiah Morris and John F. Johnson, 
claimants against the United States. 

(Judge Busteed objected to the answer, as not being responsive to the question, w r hich 
was capable of a direct answer. 

Mr. Eldridge overruled the objection, and the witness continued.) 

The order of distribution purported to be dated December 29, 1866, and to be signed by 
Richard Busteed, judge. Judge Busteed stated to the committee that the date was a mis¬ 
take; that the order was made in June, 1867. Mr. Eldridge, a member of the committee, 
looking at the order of distribution, said to him that cannot be so, because it is prospective 
in its character, and looks to the distribution of the money when it shall be collected, and 
it has appeared that the money was collected in March, 1867. Judge Busteed, then turning 
to the witness, Mr. Semple, who is on the opposite side of the table, aud scowling upon 
him, said it is an interpolation—a base interpolation. Mr. Semple replied, your son-in- 
law 7 is clerk of the court from winch this record is made out. Judge Busteed then made 
some statement to the committee, to the effect that his son-in-law was clerk of the court, 
and was an honorable gentleman and an officer in the navy, and that he had demanded some 
explanation of Mr. Semple, and that Mr. Semple had basely, or tamely I think the w r ord 
was, either retracted or submitted. On another day, during the examination, Judge Bus¬ 
teed stated that Mr. James Q. Smith, on the question of an application for an order of dis¬ 
tribution in the same case—a subsequent order in June 4, 1867—represented the United States. 

Q. Have you anything else in answer to the question.—A. Not upon that point. In 
reference to his entertaining hostility to Gustavus Horton I wish to state that during the 
republican convention in June, 1867,1 think an application was made by one of Judge Bus- 
teed’s friends that he should be introduced to the floor of the convention. He said, I think, 
that Judge Busteed w 7 as then in the capitol, where the convention was held. Some of the 
delegates from Mobile at once objected to his being introduced, upon the ground that he 
was not a republican, and said that Mr. Horton, who was recognized as a leader of the 
republican party in Mobile, had written a letter to Mr. John Hardy, the editor of the repub¬ 
lican paper, impugning Judge Busteed’s republicanism ; that Mr Hardy had published that 
letter in his paper, and that he had been called upon by Mr. Hardy to explain it, and had 
refused to make any explanation in relation to it. 

By Mr. Churchill : 

Q. How long w r as that conversation before the trial of Horton —A. I think Horton’s trial 
came on the following fall. The trial was some time after the convention. I will also say, 
on this point, that Judge Busteed w T as excluded from the convention, or was not permitted 
to take a seat in the convention. 

By Mr. Eldridge: 

Q. Was Horton at that convention.—A. I think not. 

Q. Was Judge Busteed present at that convention.—A. The gentleman who introduced 
the resolution spoke as if Judge Busteed was in attendance. I did not see him. I was in 
the hall of the house of representatives when the convention was held. 

Q. Who was that gentleman.—A. I am not very certain. My impression is that he was 


351 


a military man—an officer in the army of the United States, or one who had been an officer 
of the United States, and who was afterwards register in bankruptcy. I think it was Mr. 
Burk, but I am not certain about that. I remember that the person most active in urging 
it was Nieh. Davis, of northern Alabama. The matter occupied some time, and a good 
many speeches were made upon it, very fiercely applauding Judge Busteed on the one side, 
and denouncing him on the other. 

By Mr. Wilson : 

Q. Do you know whether Judge Busteed was informed of Horton’s action.—A. Horton’s 
letter had been published in the newspaper in which Judge Busteed’s name had been put up 
for Vice-President. I do not know of my own knowledge that Judge Busteed knew any¬ 
thing about it further than the fact that he was in town and that some time during his stay 
in town an invitation was given to him to address a portion of the republicans of Alabama, 
or of the people of Alabama. 

Q. Is it proposed on the part of the prosecution to bring the knowlege of Horton’s action 
to Judge Busteed prior to the trial of Horton.—A. Yes, sir. Mr. Andrews, who was exam¬ 
ined as a witness before this committee, testified in substance that I, being associated in a 
case with General Morgan, requested him to take part in that case as counsel, and I think 
he denied that he had any other conversation with General Morgan in my presence than 
that relating to the case in which I proposed to retain him. With the case in which I 
proposed to retain him at that time General Morgan had no connection whatever. I 
remember the case well. It was a civil action, instituted by J. Q. Smith as attorney for 
the plaintiffs, against a man named Sayre, who had been receiver of sequestrated property 
under the Confederate States, and against a man name Harwell. Harwell had been a 
factor and had received some goods from a northern man, which were in his hands at 
the commencement of the w r ar, as a commission merchant. Sayre had obtained an order 
from the Confederate States district court for a sequestration of that property, and it 
had been ordered to be sold. J. Q. Smith had very ingeniously combined an action of 
assumpsit with an action of trover against both Sayre and Harwell, one count upon trover 
and one upon assumpsit. Sayre, who was one of the defendants, and who had nothing to 
do with the matter, as he said, except that the proceeds of the property had come into his 
hands, employed me and requested me to associate Mr. Andrews with me. I prepared a 
demurrer to the declaration for misjoinder and took it with me to the back room of J. Q. 
Smith’s office where Andrews was. I found him in consultation with General Morgan 
about another matter. I am a little deaf in one ear and do not hear very well unless I can 
see distinctly the face of the person conversing, and I am uncertain whether I heard the 
conversation between Andrews and General Morgan, or whether I heard of it afterwards. 
My recollection is so indistinct that I will not state as a matter of recollection that I heard 
the conversation at all, but I know that they w r ere conversing, and in a confidential manner. 
It was not about the case in which I proposed to retain Andrews, because General Morgan 
knew nothing about it and was not associated with me in it. Andrews said that he was 
quite unwell; said it was very plain that a demurrer for a misjoinder must be sustained; that 
he would take the brief which I handed him. I had stated the causes of demurrer and the 
authorities which supported it. But he said he was so unwell he doubted whether he w'ould 
be able to go into court that day, or at all. I said to him that Sayre, if he would argue the 
demurrer, would pay him a fee of $250, and that was the last I ever saw of Andrews on the 
subject. I do not think he ever attended any court there, or if he did I do not recollect it. 
The matter was subsequently adjusted by Sayre, so that there was no occasion for presenting 
this point. 

I was present at the time Josiah Morris paid to the marshal—John Hardy—the amount of 
an execution upon a judgment against him and J. T. Johnson in the case to which Mor¬ 
ris testified. The judgment was for about $50,000. At the time of paying the money I 
recollect his saying to Hardy, the marshal, “I thought I had settled this once before.” 
These w'ere the words according to the best of my recollection. I was engaged at the time 
in making a calculation of the commission which the marshal would be entitled to, or rather 
in seeing whether the statement which he had made was correct, and I turned to Morris 
and said to him that Hardy had nothing to do with that. 

Q. Nothing to do with what.—A. The assertion he had made that he thought he had set¬ 
tled it once before. Now as to the matter of fees and allowances, there were, I think, in the 
middle district of Alabama, in which I practiced—and it was the only court held by Judge 
Busteed in which I practiced—about 1,000 cases of information, or between 800 and 1,200. 
I am satisfied there could not have been less than 800 of information filed by the district 
attorneys Smith. The fees in these cases, according to the allowance made by Judge 
Busteed, would amount to a minimum of $200 in each case. 

Q. Do you mean an average minimum.—A. No; not an average, but a minimum. I 
think there was no case, with a very few exceptions, in which the fees were less than $200. 
The order prescribed that the fees should be one per centum upon the amount of the prop¬ 
erty of the party who is proceeded against, where that was $20,000. 

Q. What order do you refer to.—A. An order made by Judge Busteed, which has been 
referred to heretofore, and where the amount was larger the fees were somewhat less; for 


352 


instance, between $’20,000 and $30,000 the percentage was one-half, and so diminishing 
with the increase of the property. Then there were many cases of those who had been 
obliged to apply to the President for pardon, upon the ground that they had more than 
$20,000 property. So that the minimum for clerk’s, marshal’s, and district attorney’s fees, in 
addition to expenses for publication and taxable costs, would not have been less than $200. 
I am not certain as to taxable costs. This district attorney, J. Q. Smith, settled nearly 
all these cases without any trial in the court, receiving the costs from the parties. I have 
the records of two of those cases which will be introduced in evidence simply for the pur¬ 
pose of showing what the character of the causes was and the nature of the services ren¬ 
dered by the district attorney (the forms were printed.) The cases I refer to are those of the 
United States vs. Thomas Joseph, and the United States vs. A. Martin. 

Q. What do you mean to say in regard to those 800 to 1,200 cases.—A. The records of 
these two cases show the manner in which these cases were generally disposed of. The pro¬ 
ceedings in most of these cases were like the proceedings in these two ; of course it would 
be impossible to get the record here of all those cases. 

Q. You say there were printed blanks of these libels of information.—A. Yes ; which were 
filled up in each case with the names of the parties and the description of the particular prop¬ 
erty, and in some cases reciting the facts of pardon, and in some particular cases that the 
party had paid the costs. Of course I do not pretend to say that I was engaged as counsel 
in all these cases. I have a very general acquaintance, however, with the members of the 
bar in the middle district of Alabama, and by correspondence with a good many of them in 
relation to the causes which they had, I know generally the nature of the proceedings in 
those cases. I think I cannot be mistaken in saying that I know of some 200 or 300 causes, 
either personally, or from my correspondence or intercourse with other members of the bar, 
in which $200 was paid in each case to J. Q. Smith. I know that I paid him myself in sev¬ 
eral cases in which I represented the party, but the party generally settled them themselves. 
I do not know of any particular services having been rendered in these cases other than those 
disclosed in these records here. In one or two cases there was a question whether the admin¬ 
istrator of the party who had died before the judgment was rendered would be subject to the 
payment of costs, and whether the party having received his pardon and sent on his accept¬ 
ance to the Secretary of State before the institution of the proceedings against him, but 
which had not been received by the Secretary of State previous to the date of the filing of 
the information against him, whether he was liable for costs. 

Q. Did you appear in those cases of which you have the record before you.—A. No ; I do 
not think I did ; I may have done so in the Martin case; I do not think I did. And Joseph 
was a client to Watson & Troy. 

Q. Did you not settle any of these cases without paying this $200.—A. Yes; I settled 
one case without paying $200 ; it was the case of Joseph B. Bibb, a particular friend of mine 
who had been a colonel in the Confederate States army, and Smith said that upon the pay¬ 
ment of about $15, the amount of actual disbursements, he would take no more because he 
was a member of the bar. And I ought also to mention that J. Q. Smith, in one of the cases 
which he settled with me, settled it by the acceptance of $100, stating at the time that he did 
so because this gentleman was a connexion of mine. I remarked to him at the time that he 
was abundantly able to pay. 

Q. What was his name.—A. His name was Charles L. Matthews, a brother-in-law of 
mine. A gieat many cases were instituted in the district court of the United States for the 
middle district of Alabama which were settled out of court. I only know of facts from 
having heard them from the parties, who said that their cases had been settled. 

By Mi . Churciiili, : 

Q. Do you speak now of cases which were instituted in the name of the United States.— 
A. In one case I know that J00 or 200 bales of cotton, I have forgotten which, were seized 
by the marshal under some allegation that the Confederate States had had some interest in 
it, which cotton had been in the possession of the executors of Peter B. Marston, who lived 
about two miles from Montgomery; the cotton had been on his plantation two miles from 
Montgomery, and being sold by his executors was brought to town, and there seized by the 
marshal. The complaint was dismissed as to all of it except about 12 bales of cotton, and 
the remainder of it was permitted to go forward ; I think it was 12 bales ; at all events such 
an amount as would probably just cover the cost of the proceedings. The way I knew the 
tact was from the executors coming to me to employ me in the case, and on being told what 
the fees were they thought they could settle it at a better rate than that, and left my office. 

By Mr. Eldridge : 

Q. All you know about that is from information from other parties.—A. [ know the fact 
that the cotton was seized in the hands of the marshal and went forward ; this I know of 
my own knowledge. 

Q. What marshal was that.—A. Mr. John Hardy. I know nothing more of my own 
knowledge in answer to the question. 

By Judge Busteed: 

Q. Do you know whether Judge Busteed was requested to preside over the deliberations 
of the convention in June, 1867, and refused.—A. I do not know. 


353 


Q. Do you know that several delegations requested him to become a member of the con¬ 
vention, and otlered foi one ot their number to resign in order that he might become a mem¬ 
ber.—A. I do not. 

Q. You and Wager Swayne were in league at that time in politics, were you not.—A. 
General Swayne and myself were members of the same political party. 

Q. Were you and General Swayne in league in politics at that time.—A. No. 

Q. Did not you and Wager Swayne at that time converse together, and consult upon the 
subject of the occurrence in the convention in relation to Judge Busteed.—A. We did not. 

Q. And never did.—A. We never did; I mean until after the time of the action of the 
convention upon it. 

Q. Did you that night.—A. I do not recollect. 

Q. Did you not meet together in caucus at Montgomery that night.—A. I do not recol¬ 
lect. 

Q. Did you not say to some person upon hearing of the occurrence in the convention, “By 
God ! I would have given $100 to see them put it to Dick Busteed in that way.”—A I do 
not recollect; I don’t think I did say so. 

Q You would not be willing to swear that you did not say so —A. I think I would be 
willing to swear that I did not say so; but I may have said something like it. 

Q. Did you not afterwards become chairman of the Union republican committee in Mont¬ 
gomery.—A. I became, I think I was called, president of the republican club. 

Q You were president, were you.—A. Yes, I was president of the republican club in 
Montgomery. 

Q. When was that.—A. In the summer of 1867. 

Q. Did you not know that Judge Birsteed denounced the act of your being president in 
the strongest terms of which he was capable, as an outrage, as hypocrisy, and as a swindle.— 
A. I did not hear of that. 

Q. Mr. Horton had not been indicted then, had he.—A. I do not think he had ; I didn’t 
know anything about it; I heard of the trial afterwards. 

Q. Were you present at the meeting called by the Union republican State committee, a day 
or two after the action of the convention, when Judge Busteed spoke in the capitol of Mont¬ 
gomery in the evening.—A. I never heard of any such meeting. 

Q. You were not present at that meeting.—A. No, I was not present. 

Q. You were instrumental in getting John Hardy turned out of his office, were you not.— 
A. Yes, I was. 

Q. You came to Washington for that purpose, did you not.—A. Yes. 

Q. Who paid your expenses.—A. I paid for myself. 

Q. Were you not reimbursed for them, or part of them.—A. I was not. 

Q. Was there any undertaking, expressed or implied, on the part of any person that you 
should be reimbursed for those expenses.—A. I do not know that there was ; I never heard 
there was. 

Q. Were you instrumental in getting J. Q. Smith expelled from the office of district attor¬ 
ney of the middle district of Alabama, and did you come to Washington for that purpose.— 
A. Yes, and it was the same visit to Washington in which I procured the removal of Hardy. 

Q. You had a great personal hostility against John Hardy.—A. I cannot say I had ; I had 
a very great contempt for John Hardy. 

Q. Had you a great personal hostility against J. Q. Smith. — A. I cannot say that I have 
a great hostility against him; I have a great contempt for him. 

Q Was it after J. Q. Smith, on the ground of Matthews being your relative, struck off 
$100 from the bill of costs which the law allowed him that you tried to get him out of the 
office of district attorney.—A.. Yes, I did not recollect that fact; but it would have made no 
difference to me. 

Q. Is Bibb, in whose case the district attorney, Smith, took costs of only $15, a practicing 
lawyer.—A. I think he was at the time ; he was practicing at Montgomery and was the candi¬ 
date for judge. 

Q. In what courts was he practicing at the time.—A. I do not know; I suppose in the 
State courts. I know that Bibb at the time of the commencement of the war was a lawyer, 
and afterwards. This thing was settled pretty early, I think ; we had scarcely had a system 
of courts inaugurated. Bibb let himself out as a lawyer; I do not think he had a great 
deal of practice. 

Q. Were you the attorney of record in the case of the United States vs. Martin.—A. I 
think it not improbable; I do not recollect. 

Q. What was Martin’s name.—A. It was Abraham Martin, who has been examined 
before this committee as a witness. I have been an attorney in 1,000 cases which 1 do not 
now recollect. 

Q Can you not state to the committee absolutely whether you were an attorney in the case 
of Martin.—A. I cannot state absolutely as to that case. 

Q. How long have you had this great contempt for J. Q. Smith.—A. On his first appear¬ 
ance in the court; I had a contempt for his ability; I do not recollect the time precisely. 

Q. Did your contempt for J. Q. Smith go any further than a contempt for his professional 
ability.—A. Yes. 

23 B 


354 


Q. How long have you had this contempt for him personally.—A. From the time I became 
satisfied that he was a corrupt man, using his office for the purpose of pecuniary gain to 
himself without any respect whatever to justice. 

Q. When was that. State the time.—A. It is difficult to say. 

Q. State it as nearly as you can.—A. I think I may venture to say that as early as the 
fall of 1866, after the fall term of the court of 1866. 

Q. Was it in 1867 ; you know the fall term of the court commences on the fourth Monday 
of November, in 1866. Was it in 1867 when you began to feel this personal contempt for 
J. Q. Smith.—A. No; in 1867 I had expressed it very strongly. 

Q. Can you state any nearer at what time in 1866 you began to feel this personal con¬ 
tempt.—A. I say I always had contempt for his abilities after I knew him. 

Q. I require you, now, to confine your statement to the contempt you had for him person¬ 
ally.—A. I say I had a great contempt for him during the fall term of 1866 ; I was satisfied 
then that he was a corrupt man. 

Q. Were you not ou terms of social intercourse with him during the entire fall term of 
1866.—A. I cannot say I was. 

Q. Will you say that you was not.—A. Yes, I will. 

Q. Will you say that during the fall term of 1866 you were not in his room and drank of 
his liquor.—A. I do not think I did. I was in J. Q. Smith’s room once during the spring 
term of 1868; he was associated in a cause with Mr. Rice, and Rice requested me to procure 
a book which they both wanted, and I went to Smith’s office and there I took a drink with 
Stanwood. 

Q. I am not speaking of Stanwood, I am speaking of J. Q. Smith. Will you state that 
during the fall term of 1866 you was not in his back room—in his private chamber—and 
did not drink there of his liquor.—A. I do not recollect ; I may have drank with him. I 
have drank with many a man I thought ought to be in the penitentiary. 

Q. Did you not go riding, or offer to go riding, with J. Q. Smith in the fall of 1866, 
behind his horses.—A. No, sir. 

Q. Did you offer to take him riding upon your horses, or horse, in the fall of 1866.—A. 
No ; I never kept one in the fall of 1866, to the best of my recollection. 

Q. Did you have one in the spring of 1867, or in the fall of 1867.—A. No ; I have been 
ou foot since very shortly after the war. 

Q Did you not invite him to go riding with you behind horses which you may have 
hired.—A. I did not invite him to go riding with me. 

Q. You stated that in the case of the 200 bales of cotton which were seized by Hardy in 
the middle district—the Marston cotton—the suit was dismissed and the cotton released, 
except 12 bales of cotton which you supposed would cover the costs.—A. I meant to say 
upon my direct examination—if I did not say it—that I was informed it was supposed that 
these 12 bales of cotton which were retained would cover costs. 

Q. Who informed you of that.—A Malcolm D. Graham, a lawyer iu Montgomery. 

Q. You stated that when the executors came to employ you they declined to employ you 
on account of the charge which you proposed to make.—A. Yes; they said they thought 
they could settle it cheaper. 

Q. How much did you propose to charge them.—A. I think I proposed to charge them 

$ 1 , 000 . 

Q. When you were here in the month of June, 1868, and filed these charges against 
Judge Busteed before the Judicial Committee iu the House of Representatives, did any per¬ 
son pay you any money on that behalf; and if so, how much, and who.—A. Yes. While 
I was here D. S. Troy, a lawyer, of Montgomery, Alabama, sent me $500 which he said was 
to bear my expenses. 

Q. Did he send it in a letter.—A. I think he did 
Q. Have you got the letter.—A. No, I have not. 

Q. What did you do with it.—A. I do not remember that I preserved it. If I have got 
it, it is very likely that I have it here. 

Q. Do you mean that you have it in this room.—A. No, sir ; I have not. If I have it, it 
is with a large bundle of papers which I have at my boarding-house in this city, and wdiich 
I did not bring with me to-day. 

Q. Until this morning, have you not brought this bundle of letters to the committee- 
room.—A. No ; I have a very large number of letters which I have usually left at my 
sleeping-room. I do not think I have had that letter from Troy in the committee-room at all, 
nor have I seen it since last July, I think. 

Q. Do you know who contributed this sum of $500 which w^as sent you by Mr. Troy.—A. 

I have heard the names of some of them. 

Q. Who have you heard the names of.—A. I have heard the name of J. Abraham Mar¬ 
tin, who is here as a witness. 

Q. Who else have you heard.—A. I have heard the name of D. S. Troy, a lawyer, ot 
Montgomery. 

Q. Who else.—A. I have heard the name of P. T. Sayre, a lawyer, of Montgomery. 

Q. Who else.—A. I have heard the name of Josiah Morris, a banker in Montgomery. When 


365 


I got home I heard the names of a number of persons, probably some half dozen or a dozen 
others, who had joined in raising this sum, but I do not recollect their names. 

Q. Can you not state the names of any others.—A. I now recollect that I heard the name 
of Captain Kenneworth, a gentleman who lives in Montgomery, Alabama. 

Q. Was he ever a lawyer.—A. I do not think he ever was. 

Q. Can you name any others than those you have mentioned.—A. I am not certain, but 
I heard some one of the firm of Lehman, Dunn 6c Co.; I do not know which one. 

Q. Do you know whether that firm had a cause pending before the United States district 
court for the forfeiture of 1,000 bales of cotton.—A. I did know that they had at that very 
time. 

Q. Has that cause been decided adversely to Lehman, Dunn & Co.—A. That cause has 
been decided adversely to them since, I have heard. 

Q. Who else can you name as being among the contributors to this sum of $500.—A. I 
cannot recall the names of any now ; the fact is it was a matter which made very little 
impression on my mind. 

Q. Can you name a single other man than those you have named of the dozen.—A. No, 
sir; I cannot at this time. 

Q. How soon after you came to Washington in June, 186^, was the $500 sent you by 
Troy.—A. I do not remember precisely. 

Q. How was it sent.—A. It was sent in a check, I think the check of Josiah Morris & 
Co., bankers in Montgomery, Alabama. 

Q. Upon whom.—A. I think it likely it must have been upon New York. 

(Mr. Eldridge objected to this course of questioning.) 

Q. When you left Montgomery to present these charges in June, or July, 1868, to this 
committee, had you been paid any money on this account—A. No, sir. 

Q. Had any person, or persons, agreed to pay you any money on this account.—A. 
Nobody. 

Q. Was there any understanding, expressed or implied, in behalf of any persons, that they 
should contribute to the expenses of this prosecution before you left Montgomery.—A. I do 
not think there ever Avas any expressed understanding. 

Q. Was there any implied understanding.—A. There was never any understanding further 
than a general concurrence of the bar of Montgomery, and a number of other citizens of 
Montgomery, and a number of citizens of Alabama outside of Montgomery, in the object of 
this prosecution, and I always supposed that they would not leave me to bear the expenses 
which might necessarily be incurred by me in my absence from home upon such a business, 
without ever having been told by them, or having asked them. 

Q. Who in the district, outside of Montgomery, do you refer to as having talked with 
upon the subject of the attternpted impeachment of Judge Busteed.—A. I have talked with 
General Pettis, of Selma, on the subject. I have also talked with Judge William M. Brooks, 
who is a lawyer, and with James L. Pugh, of Enfaula. I have also talked with Alpheus 
Baker, lawyer, and with Morgan Seels, and a number of other members of the bar from dif¬ 
ferent parts of the State whose names I cannot now recall. I ought, also, I suppose, to men¬ 
tion in this connection that some time before I had a conversation with General Swayne that 
was not in reference to this particular proceeding. 

Judge Busteed. I don’t want it, then. 

Q. Have you been paid any moneys since your return from Washington to Alabama in 
July, 1868, on this account.—A. Not a cent. 

Q. Have you had any understanding, express or implied, with any person since your return 
in July, 1868. for the nay merit of money on this account.—A. Yes. 

Q. With whom.—A. Well, sir, when I received a letter or despatch from Mr. Bowdoyn, 
clerk of this committee, informing me that the committee had organized and were ready to pro¬ 
ceed, there was a meeting of the members of the bar, or a meeting of the older members of 
the bar, in Montgomery, who could be notified, probably a dozeu or so of them, in the office 
of Judge Stone, of the firm of Stone, Clopton & Clanton. I informed them of the receipt 
of this despatch, and that I should be obliged to leave; that I thought it likely it might be 
necessary to employ couusel, as some statements might be taken before my arrival here; 
that I had sent a despatch to Mr. R. T. Merrick, in Washington, requesting him to consider 
himself as retained as counsel and I would see that proper tees were paid to him ; that 1 did 
not consider, as this was a matter in which the whole community of people were interested, 
that it was proper that I should bear the whole expenses of the prosecution. Thereupon a 
resolution was offered and adopted that three gentlemen should be nominated a committee for 
the purpose of raising funds to pay my expenses and such other expenses as should be 
incurred in this prosecution. The committee was appointed. Judge William P. Chilton, 
John A. Elmore, and Thomas H. Watts were appointed that committee. And I heard them 
say that they would address either letters or personal solicitations to such persons as they 
conceived to be most able to contribute to these expenses, and they would undertake to 
raise a fund for the conduct of the prosecutiou. And they said, or some one of them said, 
that they thought it should not be confined merely to members of the bar. 

Q. Did they say how large the fund was to be.—A They did not. Nobody knew what 
it would be. We did not know what Mr. Merrick’s fees would be. 


356 


Q. How much did you get to give to Merrick.—A. Not a cent; that is, I never got a cent. 

Q. Has Merrick been paid.—A. Merrick, when I addressed him upon this subject, said to 
me that this might be a very long and tedious investigation; that his practice was a very 
heavy one ; that lie supposed a great part of his fee, if he had one in this case, would come 
out of his brother lawyers ; that he would be entirely willing to do whatever was necessary in 
my absence, but he felt he could not surrender his business, and he doubted whether the com¬ 
mittee would allow him to appear. 

Q. Cannot you state without saying all this—did Merrick get any money for this service.— 
A. Merrick declined taking any money, aud I offered to pay him. 

Q. What amount did you offer to pay him.—A. Not any particular sum, but I proposed 
to pay him what he considered a reasonable fee. 

Q. When you were here in June, 1868, did you not telegraph to Montgomery something 
like this: “Impeachment sure; send me $500 at once.”—A. I cannot say. I kept no copy 
of the telegraphic despatches which I sent. My recollection is that I addressed a telegraphic 
despatch to Mr. Troy. I remember this expression was in it: “The sinews of war wanted. 
Send me $500 at once by check.” I think I further stated that, we must not get it from the 
members of the bar only, and feeling satisfied that an investigation would be ordered, either 
in that despatch or some other I said to them that impeachment was certain. 

Q. Was that despatch sent in cipher.—A. No ; I do not understand any cipher. I have 
never seen any despatches in cipher in my life. If you desire, I will get a copy of the 
despatch from the telegraph office. 

Judge Busteed. 1 do desire it. I desire it to be placed on record in connection with your 
testimony. 

Witness. I speak, of course, from my recollection of the telegraphic despatches, not hav¬ 
ing seen them since I sent them. 

Q. Have you sent more than one telegraphic despatch on the subject of money.—A. I 
have not, nor do I remember whether I sent more than one in which I said the impeachment 
was certain. I sent several despatches connecting with this business. 

Q. You wrote the memorial which is prefatory to the charges and specifications you laid 
before the committee.—A. Yes, I wrote them; I wrote some of them myself, and some I 
copied from the handwriting of other persons. Those which I copied I do not know that I 
copied precisely, but varied the form of some of them. 

Q. What knowledge have you of the second specification, that Judge Busteed “did make 
and act under a corrupt agreement with one James Q. Smith, unlawfully and under color 
of fees and allowances, to be awarded to said Smith by his orders, to obtain large sums of 
money from the people of Alabama and from the United States, with the view of appropri¬ 
ating it to the use of the said Busteed, and that he did thus obtain large sums of money, the 
property of the United States or of some of the people thereof.” What personal knowledge 
have you of that specification, if any.—A. I feel pretty well satisfied, from what I know, 
that a much larger amount than was reported by the district attorney, marshal, and clerk was 
received by them, aud as I understand that their emolument returns are required to be cer¬ 
tified by the judge, I inferred that he had an interest in the amount. 

Q. And that inference of yours is all the knowledge you have on the subject.—A. All the 
personal knowledge I have on the subject, except the further statement that I have the order 
of the distribution of the money in the Morris aud Johnson case. The circumstances under 
which it was made were these: first, the money had been paid McCroskey, to which he was 
not entitled, that belonged to the United States, and I supposed that that money had never 
been accounted for to the United States. 

Q. Did E. E. McCroskey, of Knoxville, Tennessee, tell you anything about the allegation 
in the second specification, prior to its being presented to this committee.—A. No, sir. 

Q. Did Barney McKinney, of Montgomery, Alabama, tell you anything about it; and if 
so, what.—A. He told me that a distribution had been made in the Johnson and Morris case, 
and he told me how it had been made; that it had been paid out of other funds than those 
collected in that case, and that he, having represented McCroskey as one of his attorneys, 
I think, had not been present at the distribution, aud apprehending that he would be cheated 
out of his share of the money he had been put to great pains to get it; and I think he made 
me a statement of the manner of distribution. 

Q. Did McKinney tell you anything else except in relation to this Morris matter.—A. I 
think not. 

Q. Did George E. Spencer, or Burke, named in the sixth specification, tell you, or did 
either of them tell you, that the judge had corruptly required and demanded of them what is 
stated in this specification.—A. No ; I had never spoken to either of them upon the subject 
at the time the specification was made. 

Q. Did L. W. Day, named in the seventh specification of your first charge, inform you of 
the matter stated in that charge by you.—A. No ; I never saw him in my life. I desire to 
explain some matters drawn out by the cross-examination. I was asked whether I had said 
to anybody, “By God, I would have given $100 to have seen Dick Busteed then,” or some¬ 
thing of that sort. 

Mr. Woodbridge. The expression was, “to have seen Dick Busteed put through.” 

Witness. Yes. I do not think I ever made use of that expression. I remember while that 


357 


matter was pending I went up to one of the rooms in the upper part of the Capitol buildino- to see 
a triend on some business, and while up there some one informed me that they had up the 
matter ot Judge Busteed again. There had been some intermissions of the proceedings upon 
it; and T said, no doubt, I would not miss that for $100. I do not think I said “ I?v God, 
I would have given $100 to have had Dick Busteed put through.” I think it very likely I 
made use ot some such expiession as that I have related. I did feel a very strono* interest 
in seeing- D 

(Judge Busteed objected to this as no explanation, and the witness did not proceed in it.) 

W itness. As to the intoimation I had ot Judge Busteed’s denunciations of me as presi¬ 
dent of a republican club- 

(Judge Busteed renewed his objections, and the witness did not proceed.) 

By Mr. Eld ridge : 

Q. Do you mean to say that the only knowledge you had of the fact that Judge Busteed did 
denounce you as being the president of a republican club was from a letter of Judge Busteed 
to another man, who showed it to you, or a part of it.—A. I do not. recollect the charge in 
that letter ot “outrage, hypocrisy, or swindling;” but I have some recollection that there 
was a charge in the part ot the letter which was shown or read to me, that it was extraordi¬ 
nary that a man whose hands were stained with the blood of Union men, or something of 
that sort, should be president of a Union republican club. As to my personal relations with 
J. Q. Smith, I never, at the time, inquired of or saw Mr. Smith except on business. 

(Judge Busteed objected, that there was no necessity for explanation on these points, and 
the witness did not proceed.) 

WITNESS. In explanation of my testimony-in-chief, I will state that within a very few 
months after my acquaintance with J. Q. Smith, which commenced in the summer or fall of 
1865, I never had any relations with him, except those which would naturally grow out of 
the associations between members of the bar having business in the same court. 

Q. Who showed you the letter to which you have referred in your re-direct examination.— 
A. J. C. Keffer. 

Q. To whom was it written.—A. I do not know. I did not see the whole letter. 

Q. Was it not written to John Hardy, do you know.—A. I do not know. 

Q. Did Keffer tell you to whom it was written.—A. I do not think he did 

Q. Did you ask him.—A. I do not recollect whether I did ; it made no impression upon 
me. 

Q. Prior to January, 1861, did you take an oath to support, defend, and protect the Con¬ 
stitution of the United States.—A. Yes, sir. 

Q. Subsequently to 1861, did you violate that oath.—A. That is a question of argument. 
I do not consider that I did 

Q. Did you engage in armed rebellion against the United States —A. I did engage in 
armed resistance to the United States. 

Q. Did you bear arms in the army of the Confederate States, so-called.—A. I bore arms 
in the army of the Confederate States, so-called. 

Q. Were you a commissioned officer in that army.—A. Yes, sir. 

Q. What was your commission.—A. I was captain. 

Q. Were you ever commissioned as major.—A. Yes; I was commissioned also as major. 

Q. When.—I think I was commissioned immediately after the battle of Chickamauga, 
which occurred in September, 1863. I desire to add, then, that I was authorized by the sec¬ 
retary of war, or the president of the Confederate States, I forget which, to organize and com¬ 
mand a regiment, but that I never acted under that authority. I desire to state, in addition 
to what I have said, that I have not repeated a great many things which are known to me, 
and which would have been, in my opinion, an answer to the questions asked me, for the 
reason that the committee had evidently not desired to hear merely cumulative testimony; 
and those matters known to me, which have been deposed to by some one or other of the 
witnesses, I have thought it unnecessary to refer to. I have procured a copy of the telegram 
referred to in a previous part of mj r testimony. It is as follows : 

“Washington, July 10, 1868. 

‘To Daniel S. Troy, Montgomery , Alabama: 

“ I consider success almost certain. Sinews of war wanted. Raise five hundred for me ; 
not from the bar alone. Reply. 

“HENRY C. SEMPLE.” 

“ I certify that this is a true copy of telegram on file in this office. 

“CHARLES A. TUCKER, 

“ Manager Western Telegraph Company." 

Mr. Semple asked, and obtained, leave to place on the files of the committee in this case 
the following papers, viz: 

The record of the Supreme Court of the United States, No. 163. 

The record of the Supreme Court of the United States, No. 221. 

The record of the Supreme Court of the United States, No. 405. 

The record in the case of the United States vs. A Martin. 

The record in the case of the United States vs. Joseph. 


358 


The record in the case of the United States vs. Cullom, Holmes, and Knox. 

The record in the case of John C. Martin and John W. Dayton vs. Rose Morgan, admin¬ 
istratrix. 

The record in the case of John W. Harper vs. Graves and Gale. 

The transcript of the fees between Smith and Bigbee. 

The transcript of the order fixing the costs in libel cases. 

The act of the legislature of Alabama authorizing the governor to contract temporary loans, 
and an act amendatory of the said act. 


Saturday, February 27, 1869. 

Mr. Semple introduced in evidence transcripts, which were received and filed in the com¬ 
mittee, and which are numbered No. 1 to No. 8, inclusive. 

Washington, February 19, 1869. 

C. F. Moulton sworn and examined. 

By Judge Bustled: 

Q. When did you get here.—A. I arrived on Monday last, at 12 m. 

Q. Did you report to the sergeant-at-arms when you got here.—A. I did in the course of 
an hour after my arrival. 

Q. At whose instance were you subpoenaed in this investigation, do you know.—A. Only 
from information derived from yourself. 

Q. From anybody else.—A. No. 

Q, Did not Mr. Smith tell you at whose instance you were subpoenaed.—A. I think he did 
in our first conversation. 

Q. Have you read the charges laid before the Judiciary Committee of the House of Rep¬ 
resentatives by one Robert H. Smith, of Alabama, against Judge Busteed, United States 
district judge for Alabama.—A. I have only read them partially. 

Q. What is your business.—A. I am judge of the criminal court of Mobile county. 

Q. Prior to the war, you were city attorney of Mobile.—A. Yes. 

Q. And have been a practicing lawyer at the bar for how many years.—A. For 16 or 17 
years. 

Q. Are you acquainted with Gustavus Horton.—A. Yes. 

Q. How long have you known him.—A. 21 years. 

Q. Did you appear before the United States commissioner, in the summer of 1867, upon a 
charge against Horton for a violation of the civil rights bill.—A. I did not. 

Q. Did you appear as counsel for Horton upon the trial of any indictment against him.— 
A. I did. 

Q. Before what tribunal was the trial held.—A. Before yourself as judge of the circuit 
court for the southern district of Alabama. 

Q. There is au allegation in the third charge made by Robert H. Smith, which reads that 
Judge Busteed “did insult and brow-beat C. F. Moulton, esq, said Horton’s attorney, so 
that he could not defend his client;” is that true.—A. No, sir. 

Q. Is there any color of truth in it.—A. I cannot say that there is. 

Q. Look at the paper now shown you and say whether it has your signature.—A. It has 
my signature. 

Q. Do you know how it was sent to Judge Busteed.—A. It was sent to Judge Busteed at 
my instance. 

Q. What is the date of it.—A. December 19, 1867. 

Q. Did Judge Busteed, on that trial, refuse to allow Horton to introduce evidence of his 
innocence.—A. I do not know exactly how to answer that. Judge Busteed refused to allow 
evidence to go to the jury which, in my judgment, tended to establish his innocence. 

Q. What evidence was that.—A. Evidence of the bad character of the negro Archy 
Johnson, and the municipal ordinance authorizing the expulsion from the city of persons of 
his character. 

By Mr. Wilson : 

Q. Had Johnson been a witness in the case on the trial of Horton on the part of the prose¬ 
cution.—A. Yes sir; it is proper, however, for me to state, when I say that the evidence was 
essential to his defence, that it is the judgment of an advocate against that of the bench. I 
do not wish to be understood as imputing an, improper motive at all to the bench, in ruling 
the testimony out. 

Q. What was the purpose stated to the court at the time, in the introduction of the evidence 
of the bad character of Archy Johnson.—A. To justify the mayor in sending him out of the 
..city. 

Q. It was not for the purpose of impeaching the testimony of Johnson.—A. No; the object 
was to show that Horton, as mayor, had come within the ordinance of the city. There was 
an ordinance existing for a great number of years, authorizing the expulsion from the city 
of bad characters; and we offered to prove that Horton’s predecessors had acted upon it for 
a great many years. 


359 


Q. Did that oidinance make a difference between white and colored persons in that 
mattei. A. No, I have a list of several hundred persons, many of them white, who had 
been sent out. 

Q. Did you offer that in proof.—A. I did. 

Q. Did you offei to piove that Horton had done the same thing with reference to whites, 
that they had been excluded by his authority.—A. I did. 

Q. Was there any evidence of hostility towards Horton manifested by the court, that you 
know of upon that trial.—A. No, sir; none that I am aware of. 

Q. Bail was offered by Horton upon the indictment, was it not.—A. Yes. 

Q. Was the first surety offned rejected.—A. It was rejected. 

Q. What did you think of that rejection on the part of the court.—A. I approved it as 
collect. 1 he suieties were not freeholders in the State of Alabama, and not considered, 
under the laws of that State, as sufficient legal sureties. 

Q. Was there an application made to adjourn the trial of the cause.—A. There was. 

Q. What was the result of that application.—A. It was granted. I made an application 
for continuance upon the ground of the absence of General C. A. Dimon, who was then chief 
of police, who was absent in the State of Connecticut, and I offered evidence stating the 
materiality of his evidence. The district attorney agreed to admit that the witness would 
testify to what was proposed to prove by him, reserving the right of the legal exceptions to 
the evidence ; and upon that announcement, the trial progressed. I do not think it was 
deferred—it may have been two or three days—though I think it proceeded the next day. 

Q. Is the paper now shown you in your handwriting.—A. It is. 

Q. Did you see the charge preferred by one HenryC. Semple, an attorney of Mobile, against 
Judge Busteed, and laid before the Judiciary Committee of the House of Representatives.— 
A. I saw the charges which were published in the newspapers. I do not know whether 
they were laid before the committee. 

Q. Did you see your name attached to the publication.—A. I did ; and on observing 
that I wrote the letter to you. 

Q. This last letter bears date June 24, 1868.—A. Yes. 

Q. Was that use of your name made with your previous knowledge and consent.—A. It 
was not. 

By Mr. Smith : 

Q. How long was Horton’s cause being tried.—A. As near as my recollection serves me, 
I think it was about five days. 

Q. State whether you were allowed to give in evidence any testimony tending to show 
that Horton had treated white persons in the same way.—A. I offered evidence of that char¬ 
acter, and it was ruled out. That was rny main point of defence—to show that there was no 
discrimination against Archy Johnson on account of his color; that he had dealt with white 
persous in the same way, in innumerable instances, and his predecessors also. 

Q. Were you allowed to introduce any such proof.—A. No, sir. 

Q. Did you not also say in your examinatiou-in-chief that a part of your purpose was to 
show that Horton was authorized by the law to do as he did.—A. I did. 

Q. Was there any evidence in the case, and, if so, what, tending to show that Gustavus 
Horton sent this negro away on account of his race or color.—A. None, that I recollect of. 

Q. Did you argue your cause to the jury.—A. I did not. 

Q. If there was no evidence tending, in your opinion, to show his guilt, why did you not 
argue your cause to the jury, when your client was involved in a penitentiary offence. — A. 
It was owing to the ruling of Judge Busteed. The ruling of Judge Busteed swept every 
vestige of defence from me, and I thought it was useless to occupy the time of the court. 
Opportunity was offered to me by Judge Busteed to argue the cause before the jury, but 
under the ruling of the court it was useless to do so. 

Q. Was the ruling of the court, then, that it was not necessary for the prosecution to intro¬ 
duce testimony tending to show that there had been a discrimination against Archy Johnson 
on account of his race or color.—A. I could not state that such was the ruling of the court. 
I could state what the ruling was, and I could state what my points of defence were, and 
then you can draw your own inference. My point of defence was that the defendant, Gustavus 
Horton, had not been guilty of violating the third section of the civil rights bill, by dis¬ 
criminating in the exercise of his judicial authority against persons on account of race, color, 
or previous condition of servitude ; and that the law he was .- worn to administer authorized 
him to send persons of bad character from the city at his discretion ; and that his predeces¬ 
sors in office had acted upon that authority for a number of years prior to the rebellion and 
subsequent thereto—prior, as a matter of course—those who were sent out were all white 
persons. 

Q. State the ruling now.—A. The court ruled it out as not competeut evidence, or he did 
not permit it to go to the jury, and that was my only point of defence. 

Q. Did the judge hold that it was necessary, or not necessary, to prove affirmatively that 
there was some discrimination by the judge in this particular case.—A. I do not remember 
any direct ruling of the judge upon that point; I remember the effect of his ruling. 

Q. Did the judge charge the jury upon that point—whether there was or was not a neces- 


360 


sity for evidence upon it.—A. His charge was very lengthy, and I cannot recall to my mind 
more than the main features of it. 

Q. Was it not a question as to whether the evidence came up to establishing a defence in 
the cause.—A. I think the effect of the judge’s charge was that Horton was guilty. I under¬ 
stood the ruling of the court as affirming the guilt of the party under the evidence admitted 
before the court. 

Q. Was there any evidence given whatever that there was any discrimination.—A. None 
in the world. 

Q. Why did you not argue the cause, then—the judge, you say, gave you the opportunity— 
and show that there was no evidence on which your client could be convicted.—A. Because 
the court ruled against me, and held that Horton was guilty. 

Q. Did you understand him to rule, as a question of fact, that the man had been guilty of 
the offence for which he was tried.—A. I think he so stated to the jury in his general charge. 

Q. Do you undertake to say that the judge decided the question of fact altogether ; did 
he take it from the jury, or did he direct the jury how to find the fact.—A. I would prefer 
to examine the charge. My recollection is that the effect of the charge to the jury was that 
Horton was guilty, and it was their duty to return a verdict of guilty; I am not positive as 
to that. 

Q. Did the point occur to you at all that there was no evidence whatever given by the 
prosecution showing that Horton had discriminated against Johnson on account of his color.— 
A. Certainly—most assuredly; I had heard no evidence that, in my judgment, sustained the 
charge preferred against Horton. I presented my points of law to the court; Judge Busteed 
listened patiently and respectfully, but ruled against me. 

Q. Was you more than usually overcome by the ruling of the court in that cause.—A. Yes ; 
I think I felt so. I felt embarrassed ; but I do not attribute any intentional harshness to Judge 
Busteed at all. 

Q. Was he harsh.—A. I thought so for one or two days ; but he afterwards explained to 
me, and asked me if I felt offended or aggrieved; I told him I did ; he assured me it was 
not intentional on his part. 

Q. This testimony which you have given here is based upon what occurred in court and 
the explanation which Judge Busteed made to you afterwards.—A. The explanation was 
made during the progress of the trial. 

Q. At.the time when his ruling was made did you complain that the judge had acted 
improperly.—A. No, I did not. 

Q. Did you complain to the judge, when he spoke to you about it, that he had acted 
improperly.—A. I told him I thought his ruling was wrong. 

Q. I understood you to say that you thought at the time he was harsh to you.—A. I 
thought so at the time, but he afterwards urged that I was not justified in placing such a con 
struction upon his conduct, and I gave it no thought after that. 

Q. There is testimony here by witnesses that you were broken down by his ruling, and 
abandoned the defence ; was there any such thing as that.—A. In effect, I did abandon it; 
my testimony was ruled out entirely on which I relied in defence of the cause of my client; 
and the points of law that I raised and argued to the court were decided against me, and, as 
a matter of course, I was left at the mercy of the rulings of the court. 

Q. Did you pretend to examine or cross-examine witnesses for the last two days of the 
trial.—A. 1 think I perhaps once or twice presented a question to some of the witnesses, but 
not to any extent. 

Q. In the main, did you sit there dumb, silent.—A. I had very little to say for the last two 
days of the trial. 

Q. Who was examining the witnesses.—A. Mr. Stewart examined the witnesses chiefly, 
on the part of the government. 

Q. Did the judge examine them, too.—A. Yes. 

Q. And you did not cross-examine them, even.—A. No ; there was no occasion for it; there 
were no questions I could ask, that I deemed essential to the defence of my client, but what 
would come under the influence of the former rulings of the court. 

Q. And you believed your client innocent. 

(Judge Busteed objected to this question. Question modified, as follows:) 

Q. Did you neglect to further examine the witnesses because you had come to the conclu¬ 
sion that your client was guilty.—A. I did not so understand ; it was not owing to the rulings 
of the court. 

Q. You sat by your client during the whole time, did you.—A. I did. 

Q. When the judge charged the jury, did you endeavor, by requesting charges, to get any 
proceedings favorable to your client.—A. I did. 

Q Did you succeed.—A. I think the charges were not given. 

Q. Did you ask the judge to charge the jury that they must find there was no evidence 
in the cause showing affirmatively that the discrimination had been made on account of race, 
color, or previous condition.—A I could not say positively; that would have been my duty; 
I asked several charges, and I presume that in effect some of them amounted to that. I 
thought I understood the law of the case; I tried to; but the court differed with me, and of 
course I submitted. 


3G1 


By Mr. Eldridge : 


Q Did you ask the judge to give instructions to the jury that there must be affirmative 
evidence that Horton had discriminated or he could not be found guilty —A I am not posi¬ 
tive as to that; my charges were written out carefully. 1 

Q. What made you feel hurt, if you considered the conduct of the judge at the time to be 
proper.—-A. I do not know that I can answer that question; it was owing to the effect of the 
ruling of the court. At one time Judge Busteed asked me during the progress of the trial 
it I was taking notes. I told him no, I carried my notes in my head. The judge replied to 
that, and I thought, from the tone of his reply, that he was perhaps offended with me; I 
think I felt so until the adjournment of the court that day, when he called me to him and 
explained. 

Q. Then you wish us to understand now that you felt you had offended the judge—not 
that you were offended by the judge; is that the way you wish to be understood.—A. I felt 
aggrieved or disappointed at the ruling of the court; lie ruled right sharp against me. 

Q. Did you think he did it from anger—A. I don’t know ; I thought he felt a deep interest 
in the cause. 


Q. A deep interest; how.—A. I supposed to see the law vindicated against what he judged 
to be an infringement of the law. 

Q. That would not make you think he was offended with you, would it.—Well, perhaps 
I ought not to say the judge was offended with me. 

Q. You did not say he was offended; you said you thought at the time that perhaps he 
was offended with you; what led you to think so.—A. It was owing to the manner of his 
ruling. 

Q. What was that manner.—A. It was very offensive. 

Q. Was it in an unusual tone of voice.—A. I cannot say as to that; it was my first 
appearance before Judge Busteed. 

r Q. Was that your feeling at the time, before you had the talk with Judge Busteed.—A. 
Yes ; I thought so. 

Q. Was that what broke you down.—A. No, sir. 

Q. It was because the law was ruled against you, only.—A. Yes, sir. 


By Mr. Smith : 

Q. Did you send me word by the cierk of the committee, yesterday, that you were here.— 
A. I sent word to no particular person; I reported to Mr. Ordway yesterday morning, and 
requested one of the officers there to report to the committee that I was in waiting and anxious 
to testify, in order that I might return home. 


By Judge Busteed: 

Q. Look at the papers shown you and say if they are in your handwriting.—They are. 

Q. Are they the instructions you prayed for on Horton’s trial.—A. The}^ are. 

By Mr. Eldridge: 

Q. Are these all the charges you asked for.—A. Yes. 

Q. Was there any request that the judge should charge that they must find from the evi¬ 
dence that Judge Horton discriminated against Johnson on account of his race, color, or con¬ 
dition.—A. I think this charge would bear that construction. 

Q. Please read the charge. 

Witness read: “If the jury believe from the evidence that no other or different punish¬ 
ment was inflicted on said Johnson than the defendant, as mayor of Mobile, imposed upon 
white persons charged with similar offences, they should find the defendant not guilty.” 

Q. Is that the only request which you think covers the point.—A. There are two other 
charges I would call your attention to, which I think bear on the point. 

Witness read as follows: “That the defendant cannot lawfully be convicted, under the 
evidence, on either count of this indictment; that if the law, statute, or regulation enforced 
by the defendant, as mayor of the city of Mobile, against said Johnson was uniform in its 
operation, making no distinction nor discrimination on account of race, slavery, color, or 
previous condition, but operating alike upon all persons within the corporate limits of the 
said city, then the defendant should be acquitted.” 

Q. Are these the only instructions which you think refer to the question.—A. Yes. 


By Judge Busteed: 

Q. Did you ask the court to charge in these words: “That the act of Congress under 
which this indictment was framed is in conflict with the Constitution of the United States, 
and therefore void, and the defendant should be acquitted.”—A. Yes. 

Q. All these charges were refused, were they.—A. Yes. 

By Mr. Semple : 

Q. Did I ever refer to you as a witness against Judge Busteed.—A. No, sir. 


362 


Washington, February 19, 1869. 

Robert W. Healy sworn and examined. 

By Mr. Smith : 

Question. Are you marshal of the United States for Alabama.—Answer. 1 am marshal 
for the southern district. The law makes the marshal for the southern district the marshal 
of the middle district also. 

Q. When did you come into office.—A. About the 1st of April, 1867. 

Q. Will you state how the grand jury that indicted Horton was drawn.—A. I do not 
know how it was drawn. 

Q. Did you take any part in drawing it.—A. I did not. 

Q. Do you know anything of its being drawn.—A. I do not. 

Q. How came you to summon the particular men who were on the jury in Horton’s case.— 
A. 1 summoned them because they were named in the venire that came to me. 

Q. Is the petit jury summoned in the same way.—A. Yes. 

Q. Who gave you that list.—A. The clerk issued the writ. That is all I know about it. 

Q. You took no part whatever in the drawing of it.—A. No. 

Q. How many juries and grand juries have been summoned for the district or circuit 
court there since you have been in office.—A. I think two grand and three petit juries. 

Q. State whether they were ever drawn from any list.—A. They were not; at least, such 
as I subpoenaed myself. 

Q. There were no names ever put in a box and drawn out at all.—A. No, sir. 

Q. Do you know how far this requirement of the law has been conformed to : “Jurors to 
serve in the courts of the United States, in each State respectively, shall have the like quali¬ 
fications, and be entitled to the like exemptions, as jurors of the highest court of law of 
such State now have and are entitled to, and shall hereafter from time to time have and be 
entitled to; and shall be designated by ballot, lot, or otherwise, according to the mode of 
forming such juries now practiced or hereafter to be practiced therein, in so far as such mode 
may be practicable by the courts of the United States or the officers thereof; and for this 
purpose the said courts shall have power to make all necessary rules and regulations for 
conforming the designation and impaunelling of juries, in substance, to the laws and usages 
now in force in such State; and further, shall have power, by rule or order, from time to 
time, to conform the same to any change in these respects which may hereafter be adopted 
by the legislatures of the respective States for the State courts.” State whether that law 
has in any case been complied with.—A. I do not know. 

Q. Do you know the rule in that respect prescribed by Judge Campbell when he was on 
the bench.—A. No ; I never saw the rules of the old court. 

Q. Do you know whether, according to the laws of the State of Alabama, the judge of 
probate and the clerk of the circuit court and the sheriff draw the jury from a list of the 
voters.—A. I think that is the law. 

Q. Do you know whether the rnle, as adopted by Judge Campbell, substituted a free¬ 
holder in place of the judge of probate of the county.—A. I do not, because I never saw 
the rule adopted by Judge Campbell. 

Q. Did Judge Busteed ever apply to you to appoint Jacob Wilson your deputy.—A. I 
cannot say that he did apply to me. After having been appointed I saw the judge—it was 
the second or third time I had ever seen him off the bench—and I asked him if he had any 
recommendations to make as to my deputies; that I had not appointed any deputies ; and 
I think he said, not in particular, but that Wilson was Hardy’s-—my predecessor’s—duputy, 
and he would suggest that I appoint him. 

Q. Did you appoint him.—A. I did not. He was not there at the time. 

Q. Where was he.—A. I think he was in New York. 

Q. Did Jacob Wilson return after that.—A. Yes; he was in Mobile after that. 

Q. What was he doing after he returned to Mobile.—A. I could not say exactly what he 
has been doing. I believe he was working for the register in bankruptcy for awhile. 

Q. Did you see him about the judge’s quarters.—A. Yes; I saw him at the judge’s quar¬ 
ters frequently. I think that he looked after the judge’s affairs when the judge was suffer¬ 
ing from his wound. 

Q. Did you see him about with the judge after he got out.—A. Yes; he was with the 
judge frequently. 

Q. Have any bankrupt effects ever been placed in your custody at all.—A. Yes ; there is 
one store in my possession now. 

Q. When were the first bankrupt goods placed in your hands.—A. I understand that by 
law I am not a custodian except in involuntary cases. In these cases there has been none 
in my hands, but there has been in the hands of my deputies by my recommendation. There 
were some bankrupt goods put in the hands of one of my deputies, probably last May or 
June. 

Q. Between the time the bankrupt files his application and the selection of an assignee, 
in whose hands have bankrupt effects generally gone.—A. Such as surrender, a great many 
of them surrender to the register in bankruptcy. 

Q. In whose hands has the register put these bankrupt effects to keep until an assignee is 
selected.—A. I do not know. Jacob Wilson was his custodian in one or two cases, 1 think. 

Q. Do you know whether Wilson was his custodian generally.—A. No, I do not. 


By Mr. Semple : 

Q. Do you know M. W. Trimble, clem of the circuit and district court at Mobile.—A 
I do. 

Q. Do you know whether he was a man of any means when he went to Mobile —A I 
do not. 

Q. Do you know whether he had any visible property.—A. I do not. 

Q. Do you know what his occupation or employment was previous to his o-oing to 
Mobile.—A. I think he was associated as a law partner with Judge J. Q. Smith. & & 

Q. Did you ever see an advertisement of a partnership between him and Smith; or was 
he merely a clerk.—A. I could not say. 

Q. Were you, at any time, directed by Judge Busteed to alter any list of a jury or grand 
juiy which you had in the distiict. court at Montgomery; and if so, in what respect were 
you directed to alter it.—A. I do not recollect any such change in the list of jurors, except 
one, where I subpoenaed Colonel Hodson, the editor of the Mail, upon the grand jury. The 
judge.objected to him before the term commenced, and 1 altered it and put him in the list of 
petit jurors. 

Q. You had not actually summoned him at the time as a grand juror.—A. I think not. 

Q. You had him on your list of grand jurors.—A. Yes. 

By Mr. Eldridge : 

Q. In that case did you yourself take his name from the list of grand jurors and put it 
into the list of petit jurors.—A. Yes. 

By Mr. Semple : 

Q. By whose direction.—A. The judge objected to his being on the grand jury, and then 
I put him on the petit jury; I do not recollect whether the judge directed his name to be put 
on the list of petit jurors or not. 

By Mr. Eldridge : 

Q. How were these jurors selected at that time.—A. I selected them myself. 

Q. Without any directions from anybody.—A. Yes. 

Q. I understood you to say that you always summoned the jurors named in the venire.— 
A. That was in the particular case. 

Q. Did you summon just such jurors as you pleased, without regard to anybody, in all 
the terms at Montgomery, or were you in the habit of submitting the list of jurors and grand 
jurors to the judge before summoning them.—A. No, sir; because generally the judge was 
not present at Montgomery before the term of court. 

By Judge Busteed: 

Q. Did Judge Busteed ever give you any general directions as to the jurors, and if so, 
what.—A. I recollect he instructed me at one time that the jurors should be men of intelli¬ 
gence. and I do not recollect whether of property qualifications or not. 

Q. Did he tell you they should be of the best known men in the community—so far as 
you could get.—A. I think you suggested that in relation to the first jury that was sum¬ 
moned by me. 

Q. You stated that you did not appoint Jacob Wilson as a deputy; why did you not 
appoint him.—A. In the first place, because he was not there; in the next place, because 
you withdrew your recommendation of him a day or two afterwards. 

By Mr. Eldridge : 

Q. I understood you to say that the judge did not recommend him, but merely suggested 
him.—A. I understood the question, as first put to me, to intimate that the judge came to 
me of his own motion and made the recommendation; but I commenced the conversation, 
and asked him whether he had any recommendations to make, or suggestion, I don’t know 
which. I think lie appeared to be indifferent about it, but said that Wilson was the deputy 
of Hardy, and he would suggest, or recommend, I don’t know which, that I appoint him. 

Q. You say, now, that he withdrew his recommendation.—A. A day or two afterwards I 
saw him, and he told me I had better not make that appointment. 

By Judge Busteed: 

Q. The 16th of the charges made by one Robert H. Smith, of Mobile, Alabama, and laid 
before the judiciary committee of the House of Representatives, contains this allegation : 
“That said Busteed did in this case refuse to allow one Healy, marshal of the southern dis¬ 
trict of Alabama, to take charge of bankrupt effects, as provided by law, until the appoint¬ 
ment of the assignee ;” is there any truth in that.—A. I think there is not; such a question 
never arose between the judge and me. 

By Mr. Eldridge : 

Q. When were you commissioned as marshal.—A. My commission bears date 27th Feb¬ 
ruary, 1867; I did not qualify until the first day of the term following. 

Q. You succeeded John Hardy.—A. I did. 


364 


Q. Do you know of any fact, either of your own knowledge or from information from 
Judge Busteed, tending to show that he ever took a bribe, or that he acted corruptly as a 
judge, or that he received presents from officers appointed or confirmed by him. A. No, 
sir; I do not. I was not aware at all that I knew anything bearing upon this case until I 
was subpoenaed. 

Q. You declined to come upon the telegram of the clerk, did you not.—A. les; I did 
not wish to place myself in the position of volunteering my testimony in this case. 

Q. You were informed that if you came on the telegram of the clerk you would be paid in 
the same manner as if you had been subpoenaed.—A. Yes. 

Q. Why did you not come on that.—A. I did not look on that in the light of a subpoena, 
and it was not directed to me 

Q. Did you not understand and believe that it came from this committee.—A. I cannot 
say as to that. 

Q. What did you believe about it.—A. I expected it did. It came from Mr. Bowdoin, the 
clerk of the committee; but it was not directed to me. 

By Mr. Semple : 

Q. You stated that you did not appoint Jacob Wilson for certain reasons that you gave; 
were these the only reasons you had for not appointing him.—A. I do not think I should 
have appointed him, because I heard a very bad name of him. 

Q. Are you on terms of confidence or intimacy with Judge Busteed.—A. I am on rather 
intimate terms with him. He has always treated me kindly, and I have tried to do the same 
by him. 

Saturday, Frbruary 20, 1869, and Monday, February 22, 1869. 

John Hardy sworn and examined. 

By Mr. Semple: 

Q. You were marshal of the southern district of Alabama, were you not.—A. I was, for 
about two years. 

Q. From what time to what time.—A From the organization of the court after the war— 
from about the middle of August, 1865, until, I think, 1st April, 1867. 

Q. Do you remember the sale, by the marshal of the United States, of certain property in 
Selma that was purchased by Robert W. Smith, of the firm of Welsh, Smith & Co.—A. 
Yes, sir. 

Q. Was the purchase of that property for $16,320.—A. I do not recollect; I cannot tell 
without reference to my books. 

Q. Have you any book or memorandum of that with you.—A. No, sir. 

Q. Are you able to say whether it was about $16,000 or $16,370.—A. No : I do not recol¬ 
lect what the amount was; I did not charge my memory with it at all. 

Q. Under what process did you make that sale.—A. Under an order issued from the United 
States district court for the middle district of Alabama. 

Q. Was it a decree of confiscation of that property.—A It was under an order of the 
court. 

Q. Had there been any final decree in the case.—A. I was not an attorney in that court; 
I was not a clerk of the court; I do not know ; I cannot answer that question. I was mar¬ 
shall, and executed the process as it was issued to me. 

Q. Did you collect the money from Smith.—A. Yes. 

Q. Did you give him a deed for the property.—A. Yes. 

Q. You made him a conveyance, as marshal, of the property.—A. Yes. 

Q. It was real estate.—A. Yes. 

Q. Did you collect the money for him.—A. Yes ; the largest portion of it I collected. He 
paid me the largest portion of it himself, in money. 

Q When you first sold the property to him, did you not take a note for a portion of it.— 
A. Yes. 

Q. Was it not for the whole amount, $16,370.—A. I think not. I think he paid me a 
portion of the money. The property was purchased by two parties in connection, Dr. N. 
Prestridge, of Selma, and Mr. Smith. It seems they were hesitating what portion each should 
pay ; and finally, I think, the conclusion was that I should make the conveyance to Mr. 
Smith, and he paid me a portion ot the money, and for the other portion he gave me a note. 

By Mr. Eldridge : 

Q. Was it sold at auction.—A. Yes. 

Q. By whom was it bought.—A. The whole was about five acres of land, and before the 
sale it was subdivided into small lots and a plat made of it. It was put up lot by lot, one 
small lot with the privilege of three or five, and it was all purchased between Smith and Dr. 
Prestridge, and afterwards, by their mutual consent, the deed was made to Smith of all the 
lots. 

Q. Did you not then, at the time, take Smith’s note for $16,370, the whole amount of the 
purchase.—A. No. My recollection is that either Smith or Prestridge paid me a portion of 


365 


the purchase money, and said as soon as I came to Mobile I could get the balance of the 
money from Walsh, Smith & Co. 

By Mr. Eldridge : 

Q. What amount was paid you first.—A. I think about one-half of the purchase money, 
whatever it was. That was in Selma. I intended to go to Mobile in a short time. I was 
told it was all correct; at least, I was willing to take the responsibility of waiting; upon them 
till I did go to Mobile. 

By Mr. Semple : 

Q. Was not the note actually given and received by you, and the deed made, before any 
money was paid.—A x I think not. My recollection is, that a few days after the purchase a 
portion of the money—my impression is about half—waff paid me. I recollect desiring a 
draft on Walsh, Smith & Co. for the balance. We finally arranged it by accepting 
these common notes of hand, whatever the amount was. I am satisfied it was not for all the 
purchase money. A portion of the money was paid, either by Smith or Dr. Prestridge, a few 
days after the sale 

Q. Was not the note taken for the whole proceeds of the sale, amounting to $10,370, and 
did you not, on the 12th of June, 1807, receive from Smith $5,000, and endorse it as pay¬ 
ment on that note.—A. No ; that is not my recollection. 

Q. Did you not afterwards endorse that note as follows : “Pay to James Q. Smith, bearer. 
John Hardy, United States marshal,”—A. I think I did. Whatever portion there was 
remaining unpaid I think I delivered it to Smith to collect the money for me. 

Q. Did you collect the money afterwards, or did Smith collect it.—A. Smith collected the 
money in Mobile and turned it over to me. 

Q. What did you ever do with that money.—A. I have got a portion of it, and with a 
portion of it I settled the costs and some other expenses with the clerk of the court. 

Q. Was not a portion of that money paid to E. E. McCroskey.—A. Not that I know of. 
I paid McCroskey money. Possibly, there may have been a portion of it which I paid Mc¬ 
Croskey. I never kept it separate at all from my other money. 

Q. Was not the note delivered by you to Smith for the purpose of paying E. McCroskey 
his distributive share under the order of distribution in the case of the United States vs. 
Morris & Johnson, 120 bales of cotton.—A. There was nothing said to Smith about McCros¬ 
key or anybody else when I delivered him the note to collect for me. I did not tell Smith 
for what purpese I was intending to use the money, or anything about it. I did not think it 
was any of his business. I asked him to do me the favor to collect the money. 

By Mr. Woodbridge: 

Q. Why did you give the note to Smith to collect.—A. Because he was going to Mobile. 

Q. Where were you, in Montgomery.—A. In Montgomery. 

Q. Did you endorse that note to him for any other purpose than for collection.—A. No. 

By Mr. Semple : 

Q. Do I understand you that you paid McCroskey his share, or a portion of his share, under 
the order of distribution ; or did J. Q. Smith pay it to him.—A. I paid E. McCroskey a cer¬ 
tain amount of money as an informant in some case; I do not now recollect what. I took 
his receipt upon my docket for the amount, as directed by the order of the court. 

By Mr. Eldridge : 

Q. Did J Q. Smith briug you the money on the note.—A. Yes. 

Q. And you received the money.—A. Yes. 

Q. Have you any knowledge of his giving that note to E. E. McCroskey.—A. No ; I 
never knew anything about it until the money was returned. 

Q. When was it returned to you.—A. I suppose 10 or 15 days afterwards. 

Q. Do you not know the fact from J. Q. Smith, that he used that money in settling with 
McCroskey.—A. No; I do not know it from any source. I settled with McCroskey myself. 
I paid him a certain amount of money. I never paid him a note, check, or draft. I paid 
him money, the actual currency, and took his receipt just as I did in all other cases. 

Q. Did McCroskey take any note from you.—A. McCroskey never took any note from me. 
I settled with McCroskey and took his receipt. 

Q. Have you got that receipt with you.—A. It is in my docket. 

Q. Have you got your docket.—A. No; I did not bring it, of course. It was a marshal’s 
docket. 

Q. Did you keep it as your own private record.—A. I kept it for my own personal pro¬ 
tection. When executions or orders were issued to me, I would enter them down on my 
docket so as to keep my business in order when I paid money. I paid Mr. Semple money 
on several occasions ; I always took his receipt. 

Q. This docket you kept as a private record, did you.—A. Yes ; it was private—tor my 
own protection. It is in my possession now, but it is not here. 

Q. Do you not know that J. Q. Smith gave McCroskey an order upon Walsh, Smith & 
Co. for $3,185 in payment of a part of his share under that order of distribution, and that 


that was a part of the payment made by Robert W. Smith upon this note. — A. I do not 
know anything in the world about the business of J. Q. Smith and E. McCroskey. I had 
nothing to do with them in their settlement. It was none of my business. The order of the 
court was given to me, and I settled, by that distributive order, with McCroskey personally. 
Whatever settlement he and Smith may have made afterward or previously I know nothing 
about it. 

Q. How much money did you pay McCroskey.—A. I do not recollect. 

Q. Can you give us any idea.—A. No; I cannot. I think it was between $6,000 and 
$10,000. If I had had any idea that it would be a question of importance here, I might have 
brought my docket so as to have shown his receipt. 

By Mr. Eldiudge: 

Q. Was the order of distribution given to you or to Smith.—A. It was given to me. 

By Mr. Semple : 

Q. If you took McCroskey’s $14,245 86 on that occasion, did you pay him $14,245 86 in 
money.—A. I paid him half the amount under the order; whatever it was, I cannot tell. 

Q. Do you not know that the case in which you paid McCroskey money as informer was 
a case of the United States vs. 120 bales of cotton—Josiah Morris and J. T. Johnson.—A. 
It may have been the case ; 1 do not recollect. 

Q. Do you recollect paying him money as informer in any other case.—A. I only paid him 
money as informer in one case. 

Q. If the amount due to him under the order of distribution was $14,245 86, I under¬ 
stand you to say you paid him $14,245 86.—A. No; it was no such thing. I paid McCroskey, 
as informer, whatever he was entitled to under the distribution of the court. 

Q. If what he was entitled to was $14,245 86, you paid him that amount, then.—A. Yes ; 
if he was entitled to that under the order. I paid him the full amount of distribution under 
the order of the court, and took his receipt on my docket. 

Q. You actually paid him the amount due under the order of distribution.—A. I paid him 
whatever he was entitled to. 

Q. Was there any reference to an agreement between him and Smith, or to what was due 
to Worrall or to Weaver.—A. The order directed me exactly what to do, and I followed it. 

Q. I understood you to say that the order directed you to pay the money to the informer.— 
A. I complied strictly with the requirements of that order. 

Q. Will you be good enough to read the order of distribution handed you and say whether 
the origiual of it was in your possession, and whether it was delivered by you to Storer. I 
hand you the transcript of the record of the Supreme Court of the United States, No. 163, the 
case of Josiah Morris and J. T. Johnson; the order of distribution is on printed page 22; 
will you state whether the original of that order was in your possession, and whether it was 
delivered by you to Storer.—A. I could not say whether it was unless I had the origiual 
order to compare it with. I might read it over 20 times ; I could not tell. 

Q. Did Storer call upon you for the order of distribution in that case for the purpose of 
making out a transcript for the Supreme Court of the United States, and did you give him 
one.—A. He called on me, I think, and asked me to loan him or to let him use the order for 
the purpose of furnishing a transcript of the case; for what purpose I do not know. 

Q. Was the order which you furnished to Storer the order of distribution in that case under 
which you acted in paying the money to McCroskey.—A. I furnished the order to Storer 
under which I acted. 

Q. When he said he wanted it to make a transcript.—A. Yes. 

Q. I read from the fifth paragraph of the order printed in this record : “The clerk will take 
and file receipts under this order with the papers in these proceedings, and this order ;” is 
this a copy of the order under which you acted.—A. If you will furnish me with the original 
order, I will tell you whether it is a copy. 

By Mr. Woodbridge : 

Q. Is this the order under which the distribution was made.—A. I cannot answer that 
question. 

Q. Did the order of distribution in which you were directed to pay McCroskey direct you 
to pay any money.—A. I think I was directed to pay him his distributive share. I intended 
to return the order of distribution, and all the papers, to the clerk., so as to have them all 
filed in the court. 

Q. When you went out of office, why did you not put it into the clerk’s office.—A. The 
clerk was not there at the time. 

Q. Did he have a deputy there.—A. A young man he had there; whether a deputy or not 
I do not know. 

Q. Who was that young man.—A. I think Storer. 

Q. Do you not know that he acted as deputy, and that you directed him to have certain 
papers signed by himself from month to month during the absence of Blake.—A. Yes ; I do 
not know whether he was deputy or clerk, or in what position he was employed. I never 
paid him any money and I never would. 

Q. When you had money which was ordered to be paid into the registry of the court, what 
did you do with it.—A. I kept it until Blake returned. I have no recollection of ever paying 


367 


any money to Stover. I always had my settlements with Blake, the clerk; I preferred that 
as a matter of safety. 

Q. Did you ever account to the United States for the $16,370, or whatever it was, that 
Robert H. Smith paid for the property he purchased, and for which you made him a deed in 
Selma.—A. To what particular officer of the government ? 

Q. The question is, have you ever accounted to the United States for that money.—A. I 
accounted to the court, and also to the clerk, after the blowing up of the First National Bank 
in Selma. I am not certain whether I deposited that identical money. There was some 
$50,000 or $60,000 in the First National Bank of Selma when it suspended. I do not recollect 
whether it was that money, or whether a portion of it was that money. 

Q. The amount in the Bank of Selma was to your individual credit as marshal of the 
United States.—A. Yes. 

Q. You deposited in that bank, on the 5th of December, 1866, $17,005 11; where did that 
come from.—A. I do not recollect. 

Q. Where did you get the money from.—A. I made quite a number of deposits at the 
First National Bank of Selma, as I collected the money from various sources. Directly after 
I went into office, aud after the bank was established, I was directed to deposit all govern¬ 
ment moneys in that bank for that district; aud in the southern district, in the First National 
Bank at Mobile. As I collected moneys I deposited them in the First National Bank at Selma. 

I have no recollection of any particular deposit. I made no special deposit. 

Q. When was it that the First National Bank of Selma failed.—A. I do not recollect the 
date. 

Q. Do you recollect the year.—A. I am not positive—I think in 1866 or 1867. I did 
not charge my memory with that matter at all. 

Q. Was it not in the spring of 1867.—A. I cannot say; it may have been 1866, and it 
may have been 1867. 

Q. Do you recollect collecting the amount of an execution from Josiah Morris in the case 
of the United States vs. Johnson & Morris—120 bales of cotton—about the 25th or 26th of 
March, 1867, of upwards of $30,000.—A. I collected two executions from Morris, I think; 

I do not recollect the dates of them. 

Q. Was not the amount of about $30,000, which you collected from Morris, the last large 
sum you deposited in the First National Bank of Selma.—A. I cannot answer that question, 
because I do not recollect; I deposited different amounts ; sometimes I deposited a portion 
of one collection and sometimes of another; I made no special deposits of any particular 
amount. 

Q. If it were shown to you that you collected $31,000 and odd from Morris, on the 26th 
of March, 1867, aud that you deposited $30,509 in the First National Bank of Selma on the 
26th of March, 1767, would you not be satisfied that that was the money you had so de¬ 
posited, or that it Avas from the money collected from Morris that you had deposited the 
$30,509.—A. Some of that amount may have been from Morris and some of it from money 
collected previously. 

Q. If it were shown to you that in January, 1867, you collected about $25,000 from Morris, 
and on the 10th of January, 1867, you deposited $23,000 in the First National Bank of Selma, 
would you not believe the deposit was of the money thus collected.—A. I would have no 
more reason to believe it than I would in the other instance. I was collecting money from 
various sources, and I deposited just about as much as I thought the government was the 
owner of in the bank, and kept it up for that purpose all the time. 

Q. Do you remember making more than four deposits in the First National Bauk at Selma.— 
A. I cannot tell. I have no more idea how many times I deposited there than how many 
times you did. It was a matter I did not charge my mind with at all. I have not looked at 
my bank account in six months, since I made a return of the amount in the bank to the 
court as a protection to the court. 

Q. Did that return state the sources from which the deposits were collected.—A. No; it 
returned the total amount. 

Q. Without saying from whom you collected it and to whom it belonged.—A. It did not 
say from what sources it came. 

Q. Do I understand you to say that the sum for which you had taken McCroskey’s receipt 
you paid to him in money.—A. I paid it to McCroskey in money. That is my recollection. 
I took his receipt for it upon my docket. 

Q. Did you make returns of the emoluments of your office as required by law.—A. Yes ; 
I made them semi-annually. 

Q. Did you make any return for the half-year commencing December 1, 1866. —A. I do 
not recollect. All my reports are on record, I presume. 

Q. You presume, but you do not remember whether you made any report for the half year 
you are asked of.—A. I do not. I presume they are all on record. I kept a memorandum 
myself, and sent a proper report to the government. 

Q. If you made no returns for that period, why was it that you did not make them.—A 
I presume I did, if the law required it. I did not say I did not. I presume I made every 
return that the law required me to make. 

Q. Here is a certificate of the Secretary of the Treasury saying that you did not make the 
returns for the half year about which you are now asked: 


368 


“Treasury Department, February 17, I860. 

“ Sir: I have the honor herewith to transmit a report from the First Comptroller, with its 
enclosures, as also from the Solicitor of the Treasury, to each ot whom was referred your 
letter of the 16th instant, requesting to be furnished with certain information lor the Judi¬ 
ciary Committee of the House of Representatives, charged with the investigation into the 
official conduct of the Hon. Richard Busteed, judge of the United States district court ot 
Alabama. # . 

“It is believed that the above reports of these officers contain all the information in pos¬ 
session of this department upon the subject of your inquiry. 

“ I have the honor to be, very respectfully, 

“HUGH McCULLOCH, 

“ Secretary uf the Treasury. 

“Hon. F. E. WOODBRIDGE, 

“ Chairman Sub-Committee House of Representatives .” 

The following exhibits accompany this letter: 

The emolument returns of John Hardy, United States marshal middle district Alabama, 
August *25 to December 31, 1865. 

The same returns, July 1 to December 31, 1866. 

Semi-annual report, January 1 to June 30, 1866, of the fees and emoluments of John 
Hardy, United States marshal for the middle district of Alabama. 

Emoluments of John Hardy, United States marshal southern district Alabama, August 
25 to December 31, 1865. 

Same, January 1 to June 30, 1866. 

Same, July 31 to December 31, 1866. 

Have you any recollection of having made any return other than those which I have read 
to you —A. I made all the returns that the law required me to make, as I understood it. 

Q. You have a general recollection that you endeavored to do your duty in that respect; 
have you any recollection that you made a return for the period from the 1st of December, 
1866, to the time you went out of office in 1867.—A. Did the law require me to do it? 

Q. I think so.—A. If it did, I presume I did it. 

By Mr. Churchill: 

Q. The question is, do you now recollect making such a return.—A. I have no recollec¬ 
tion of any specific return ; I endeavored to make all the returns required by the law. 

Q. And these returns which you made, did they embrace all the receipts, all the fees, and 
the emoluments of your office during the time for which they purported to be made.—A. 
I presume they did. 

Q. This first emolument return shows a total amount “ received, not received, and earned,” 
of the sum of $13,673 40.—A. I presume this is a correct transcript of the original, and it 
appears from that that this was the amount. 

Q. Did these returns cover the proportion of the fees received by you for the costs col¬ 
lected in libel cases and confiscation cases.—A. The returns include what the report shows. 

Q. The report does not specify the sources from which the different items of costs were 
collected.—A. I was not aware that the law required me to do that. 

Q. I do not say that the law did require you to do it; I say that the report does not specify 
the sources from which the amounts were received.—A. The report shows, I presume, how 
much money was received. 

Q. Did you embrace in this report the fees earned and received by you in respect to these 
libel cases. Does this column, amounting to $13,673 40, embrace the fees earned by you 
in respect of these libel cases.—A. That shows exactly where the money was received, does 
it not ? 

Q. It is a question of construction whether you consider it as being embraced.—A. I con¬ 
sider it embraced; it is embraced there, I should think, by the lauguage which is used : 
“ Allowed by the judge under the act of 1862.” 

Q. Two thousand nine hundred and twenty dollars was the amount actually “received,” 
as is shown by that report.—A. Yes. 

Q. Did you include in this report what you received from the fees in confiscation cases 
aud in the libel suits.—A. What other act was there by which the judge could allow me 
compensation but the act of 1862? 

Q. I am not under examination as to the law on this subject; but I am endeavoring to 
ascertain what you know about it. Do you say, then, that you considered it your duty to 
include in your return the fees received by you in these libel suits —A. The return so spe¬ 
cifies, I think. 

Q And these are correct returns for the period for which they purport to be made.—A. I 
judge so. I have made affidavit there, I see, to this effect. I presume they were correct 
returns. In order to ascertain, I would have to compare them with my books and with the 
returns made to the clerk’s office. 

Q. What proportion of the costs in these libel cases was allotted to you in the libel suits 
against individuals when they plead pardons and were dismissed upon payment of costs.— 


369 


A. There was an order made by the judge of the court. I do not recollect exactly what 
proportion was allotted to the three different officers of the court. A certain percentage was 
allowed to the United States distiict attorney, a certain percentage to the marshal, and a 
ceitain percentage to the clerk Ihe amounts may have been one, two, three, or ten per 
cent.; I do not recollect precisely. 

Q. Do you think it was less or more than 10 per cent, of the amount.—A. I do not 
think it exceeded 10 per cent. It may have been less; in many cases it was less than 
10 per cent. 

Q. To whom did the remainder of the costs go.—A. I do not recollect what proportion 
was allotted to each officer. The largest portion was allotted, I think, to the district attor¬ 
ney ; then a portion was allotted to the marshal, and a portion to the clerk of the court. 
When a party pleaded his pardon, he was allowed to pay the costs of court and was discharged, 
T suppose. That is the usual course. They generally came in very readily and paid up the 
court costs. «* 

Q. How many of these cases were there in the middle district in which the costs were so 
paid. — A. I do not know ; I cannot tell. 

Q. Were there not as many as 500.—A. I do not think there were. 

Q. Were there not as many as 450.—A. Perhaps there may 7 have been 400; I do not recol¬ 
lect. I kept a record, of course, of every case. I made the proper returns, and everything 
ot that sort. I have that record now 7 at Selma. 

Q. Is it a public or private paper.—A. I keep it for my own purposes. 

Q. Y ou did not, then, consider yourself obliged to keep a fee-book in your office showing the 
amount of tees received by you.—A. Of course it was absolutely necessary, for my own pro¬ 
tection, so as to have my book accord with the returns I made with the clerk’s fees; I mark 
my fees on every paper after the service; when I return them to the clerk’s office those 
returns agree with the book that I kept. 

Q. Did you turn over any money to your successor in office, or to the court, when you 
retired from the office of marshal of the middle district of Alabama, other than that before 
deposited to your credit as United States marshal in the national bank of Selma.—A. I 
turned over no money to my successor; the clerk and myself have had some settlement, and 
one or tw 7 o cases are yet unsettled, waiting the adjudication of this money in the Bank of 
Selma to consummate a settlement. 

Q. Is that the money of the United States.—A. Yes; I do not know whether the whole 
amount, upon settlement of these cases with the clerk, will go to the government. I cannot 
tell until I can have a full settlement with the clerk 

Q. Is there any part of it that belongs to the government.—A. Yes. 

Q. Still in your hands.—A. No; in the National Bank at Selma. 

Q. Other than that in the National Bank at Selma, is there any money which you have 
turned over to the clerk since the expiration of your term of office.—A. As I said before, I 
have settled with the clerk two or three cases, perhaps, since I went out of office. 

Q, Did you pay to James Q. Smith any amount, and if so, what amount, at the time you 
paid McCioskey out of that fund which had been collected in which McCroskey had an 
interest as informer.—A. I think I paid him the amount that the order of distribution 
required me to pay him. 

Q. Was not that amount stated to be five per cent, upon the amount collected.—A. I do 
not recollect; these matters are all matters of record ; I did not charge my memory with 
them. 

Q. Did the order of distribution, which I read to you from the printed record, provide, 
first, that five per cent, of the amount collected should be paid over to the United States 
attorney, J. Q. Smith, as a reasonable fee for his services in the prosecution of these pro¬ 
ceedings.—A. I paid Judge Smith the day after I paid McCroskey, some time in the sum¬ 
mer of 1867, the portion allotted to him by the order of distribution. I took receipts in every 
instance, and I have the receipts. 

Q. And you brought none of these papers with you.—A. No ; I brought but one memo¬ 
randum with me. 

Q. Did you have to your credit, as United States marshal, in the First National Bank at 
Selma, when it suspended, more than $45,355 18.—A. I think there was about $60,000. 

Q. To your credit as United States marshal.—A. That I had deposited there. 

Q. I speak of your account as United States marshal.—A. There was about $8,000 or 
$10,000, perhaps $12,000, deposited for which I had certificates of deposit. 

Q. And you had these certificates of deposit at the time of the suspension of the bank.— 
A. Yes. 

Q. And turned them over under the order of the court.—A. It seems the case had been 
dismissed, or something ; I never knew what disposition was made of the case, but 1 turned 
them over according to the order of the court. 

Q. To whom.—A. I think to William Brooks, who was attorney in the case. 

By Mr. Woodbrfdge : 

Q. You had a general account in the bank at Selma, as marshal.—A. Yes. 

Q. And whenever you deposited money it was placed to your credit, as marshal.—A. Yes. 

24 B 


370 


Q. Tlien why, in these individual instances, did you take special certificates of deposit.— 
A. I preferred it; I had no confidence in the bank, and I preferred taking that class of 
showing. 

Q. If you had no confidence in the bank of Selma, why did you make that your place of 
deposit.—A. I was directed by the Secretary of the Interior to make the First National Bank 
of Selma and the First National Bank of Mobile my depositories. 

Q. Would you be more safe with certificates of deposit than with a general credit.—A. I 
preferred it. I think I would. 

Q. Was that the only reason you had for taking these special certificates.—A. Yes. 

Q. How much money was collected for the United States of America in these confiscation 
cases during your term of office.—A. I cannot tell without referring to the records. 

Q. Can you say that as much as $10,000 was collected.—A. It is all a matter of record ; 
all the returns have been made to the clerk of the court; that is the only way to ascertain it. 
I could, by reference to my own books, come within $10 of the amount. 

Q. Can you come to within one-half of the amount now. Would you be able to say with 
certainty that it was $10,000, or $25,000, or $50,000, or $100,000.—A. What class of confis¬ 
cation cases do you mean. 

Q. Where the property was condemned as forfeited to the United States, and where the 
proceeds of the sale of that, property came into your hands, as marshal of the middle dis¬ 
trict of Alabama.—A. I suppose the amount may have been $60,000 or $70,000. 

Q. Was there not about $30,000 in the case of the United States vs. Josiah Morris and 
J. F. Johnson.—A. Do you mean the Avhole amount, independent of the amount allotted to 
the informer. 

Q. Yes, I mean the whole amount. —A. Yes, there was one case of about $30,000, I think, 
against Morris. 

Q. Was there not another case of about $25,000.—A. Yes ; somewhere in that vicinity. 

Q. Was there not another case of $15,000 or $16,000, the 155 bag case ; I believe the 
money never was collected in that case.—A. I do not know anything about it. 

Q. Your present recollection is that it would be safe to say that at least $50,000 or $60,000 
was collected in that way.—A. Yes ; I think so. 

Q. Do you not think it safe to say that $75,000 came into your hands in that way.—A. I 
cannot tell; it is a matter of record, as I said before; it can be ascertained to within $10 if 
you will go to the proper sources to get the information; it is impossible for me to charge my 
memory with these things. 

Q Were the proceeds of the sale of 239 bags of cotton paid into court by you in Mobile 
in the case of the Planters’ factory cotton which was proceeded against in Mobile.—A. Yes ; 

1 noticed one of these charges that I look upon as a very foul and malicious one. Just 
before I left Montgomery, or before I left home, I referred to my books in regard to the mat¬ 
ter, and it is the only memorandum I took. Mobile, you know, is in the southern district. 

By Judge Busteed : 

Q. In which budget is this “false and malicious ” charge.—A. In the case of the United 
States vs. 239 bales of cotton. I received the order of sale from the court on the 18th of 
June, 1866 ; after advertising it 10 days in three newspapers of Mobile, on the 28th of June, 

1866, the cotton was sold at public sale. It was sold for $17,805. On the 6th of February, 

1867, after Worrall returned from New York—who was clerk of the court, and to whom the 
order directed me to pay the money over—I took his receipt for that money, including, of 
course, the expenses, &c , of the sale. Out of the $17,805 I deducted the expenses, &c., 
which I had paid, and paid to Worrall the balance and turned over to him the vouchers for 
what I had paid the money. 

Q. What was the amount of money you paid to Worrall.—A. I do not recollect; I did 
not take a memorandum of that. 

Q. Was it as much as $15,000 which you paid Worrall.—A. No; I do not think T did. 
But I took his receipt for the whole amount and delivered over the vouchers, moner, and 
everything else. 

By Mr. Woodbridge : 

Q. What were the expenses of the sale, as near as you can recollect.—A. I do not recol¬ 
lect. The expenses were pretty large, I think, in that instance, because they had been 

stealing it up there. There were steamboat charges, repairing charges, warehouse charges, 
and a variety of charges which I had to pay out of the proceeds of the sale. 

Q. What percentage did you get for the sale.—A. Whatever the order of the court was. 

I do not recollect. One per cent., I think it was. 

By Mr. Semple : 

Q. Were there not auctioneer’s fees included in these expenses.—A. Yes. 

Q. You paid the whole amount of the fees to the auctioneer.—A. I paid over the whole 

amount to the auctioneer, whatever they were. I do not recollect. 

Q. And in all cases where you employed an auctioneer, and auctioneer’s fees were charged 
as expenses, did you pay the whole amount charged to the auctioneer.—A. I did just as the 
vouchers show, which I returned to the clerk of the court. 


371 


Q. Haa you turned over to the court or clerk all the moneys in your hands, as marshal, 
when you went out of the office for the southern district of Alabama.—A. Yes ; I had set¬ 
tled with the clerk of the southern district. I have not settled with the clerk of the middle 
district, in consequence of this difficulty with the Bank of Selma. As soon as I can get 
them in condition I am ready to settle. It has given me a great deai of trouble and annoy¬ 
ance. 

By Mr. Smith : 

Q. Did you have 239 bales of cotton removed from the warehouse where it was originally 
stored that was seized in Mobile on a process issued from the district court at Mobile.—A. 
These 239 bales of cotton were a part of a lot of some 350 bales that had been levied on by a 
process issued from the middle district of Alabama, at Vernon landing, on the Alabama 
river. This lot was levied on by a deputy by the name of Davis, in whose custody it con¬ 
tinued for some time. Davis finally reported to me at Montgomery that Nun was running 
oft that cotton from the landing at Vernon under the advice of some lawyers in Mobile. 

Judge Busteed. Did he say what lawyers. 

Mr. Eldridge. Answer the question which has been put to you, and then if you consider 
any explanation necessary you can make it. 

(Repeats the question of Mr. Smith ) 

A. I had made arrangements with Hurtel, the warehouse man in Mobile, and an honest 
man as I conceived. 

By Mr. Eldridge : 

Q. Did you have 239 bales of cotton removed from the warehouse where it was originally 
stored in Mobile.—A. My deputy moved it. One of my deputies moved it from the ware¬ 
house to which it was shipped by Nun & Thompson, to this warehouse of Hurtel that I had 
made a general arrangement with to receive such cotton. 

Q. Did the deputy move it by your order.—A. I was not in Mobile. The process was 
issued before it came into my hands. 

Q. Who was the deputy.—A. Jacob Wilson. 

Q. Did you give Jacob Wilson special orders to move the cotton.—A. Not special orders. 

Q. Did you give him any orders.—A. I gave him an order, whenever cotton was levied 
on in Mobile, to move it to the custody of Hurtel, and I presume, in accordance with these 
general instructions, he removed this lot. 

By Mr. Smith : 

Q. Do you not know that the cotton which was levied on up the country was delivered to 
Nun & Thompson on a stipulation entered into.—A. No ; I do not know any such thing. 

Q. Do you not know that the cotton levied on in Mobile was levied upon by virtue of a 
process issued from the district court at Mobile.—A. It was under a process issued from the 
district court in the middle district, and it was held in this warehouse—I think in McGee’s 
warehouse, perhaps—by this map Davis ; and subsequently there were proceedings instituted 
in the district court at Mobile against it, and it was before that process that Jacob Wilson 
removed the cotton. 

Q. Was it not seized in Mobile under a libel issued from the district court at Mobile in 
the name of the United States, which is now there of record with your attorney.—A. It was 
under two processes, a process from the middle district which this deputy Davis held and 
followed it to Mobile and he found it in this warehouse, and subsequently there were pro¬ 
ceedings instituted in the other district—the southern district—against it. The process was 
delivered to this young man Wilson. Wilson took charge of the cotton under this process 
issued from the southern district, and removed it to Hurtel’s warehouse. 

Q. Do you not know when that cotton came to Mobile that James M. Tomeny, the treas¬ 
ury agent, seized it.—A. I do not know anything about it. 

Q. Do you not know that you or your deputy took it from the treasury agent when you 
removed it.—A. I do not. 

By Mr. Eldridge : 

Q. Is this McGee warehouse known as the Planters’ warehouse.—A. I do not know ; it 
is known as McGee’s warehouse. 

Q. Is there any other warehouse known as the Planters’ warehouse.—A. Whether that 
is the warehouse known as the Planters’ warehouse I cannot tell. 

By Mr. Smith : 

Q. Was not these 239 bales of cotton taken from the Planters’ warehouse first to Beebe’s 
warehouse.—A. Not that I am aware of. 

Q. And from Beebe’s warehouse to the Verona warehouse.—A. As I said, I had made 
arrangements with Hurtel—on whom I looked as an honest man—and when I went to look 
for the cotton to examine into its condition, I found the receipts; at least Wilson delivered 
the receipts of Hurtel & Hammond. 

Q. Which is the nearest to the wharves where the shipping takes place—the Planters’ or 
the Verona warehouse.—A. Which do you call the Planters’ warehouse. 


372 


Q. I call that warehouse the Planters’ warehouse in which the cotton was first put when 
you levied upon it.—A. McGee’s is nearer to the river than Hurtel & Hammond’s. 

Q. Is it nearer than the Verona.—A. The Verona is Hurtel & Hammond’s, or Hurtel’s 
warehouse; and I think this cotton went to the Verona warehouse. 

Q. The Verona is the one you call Hurtel’s.—A. Yes. 

Q. The warehouse to which you took the cotton was further from the river than the one 
in which it was originally.—A. Yes ; the warehouses were about 200 or 300 yards apart. 

Q. How long has McGee been in the warehouse business in Mobile.—A. I have known 
the old man for 20 years, I suppose. 

Q. He is one of the old-established warehousemen in the city.—A. I do not know about 
his business. He has been in all kinds of business in Mobile. I do not think he has been 
engaged in warehouse business all his life. 

Q. Do I understand you as testifying that this cotton, when levied upon by the country, 
had been released upon stipulation.—A It had not been released. I had agreed condition¬ 
ally, to take a stipulation. I told Nun I would see whether the district attorney would con¬ 
sent, or at least that he should fix up a bond, and that I would confer with the district attor¬ 
ney, Judge Smith, at Montgomery. He was the only lawyer in that country I could safely 
advise with, as I conceived. I took the bond or stipulation to Montgomery, and he advised 
me not to do it without an order of the court. 

Q. Did you ever return it to the party.—A. I notified Nun a few days afterwards. I sent 
word by this man Davis. I think I sent him a letter. I think I gave the bond to Davis. 

Q. You say you did not know that Tomeny, the treasury agent, had seized it in Mobile, 
and had it in possession when, you levied upon it—A. No; if he had, I did not know it. 

Q. How long did you have it in your possession before you sold it.—A. I cannot tell; the 
return is made on the writ ok warrant—the day of seizure and the returns of the sale. I do 
not. know what time it was levied on. 

Q. About what time.—A. I do not know. 

Q. Did you have it two months.—A. I might and I might not. I cannot tell. I took a 
memorandum of the sale. 

Q. You have read the charge, you say.—A. Yes. 

Q. If that charge does not relate to the paying over of the money, but relates to the con¬ 
version of the cotton by you, why did you confine your memorandum to the mere fact of 
how much money it sold for and was paid over.—A. Because you allege in your charge that 
I have never accounted for the money. You make no mention as to its seizure or anything 
of that sort; but you do allege that I never accounted for the money. 

Q. The printed charge states, that “ While the cotton was under seizure by John Hardy, 
then the marshal of Alabama, he, the said John Hardy, feloniously appropriated the same 
to his own use, and to the use of said Busteed, and substituted 239 other packages, called 
bales of cotton, in their place, of inferior quality, and of less weight than those seized ; and 
that said Busteed, to prevent the discovery of that act, did, against the orders of the Attor¬ 
ney General of the United States, given in said matter, cause said substituted cotton to be 
sold by John Hardy, marshal as aforesaid, and has never accounted for the proceeds of the 
cotton sold, nor required said Hardy to do so.” You observe there is no charge that you did 
not do it, but that said Busteed has uever required you to do it. Now state when you made 
a memorandum with that charge before you, why you did not make a memorandum tending 
to show what was the disposition of the cotton and how long you had it.—A. The disposi¬ 
tion of the cotton was that of a sale. 

By Mr. Eldridge : 

Q. The question is with regard to the cotton seized; the sale related to the cotton substi¬ 
tuted—if cotton was substituted.—A. I have no idea how long the cotton was under seizure. 

Q And the question was why, when you took this memorandum, you did not take a 
memorandum of the whole transaction.—A. I could have done it just as easily. 

Q. Can you give any reason why you did not.—A. I had no idea that the question would 
be asked, nor did I consider it was a matter of any importance how long the cotton was 
kept in custody. 

Q. But you must see that the gravamen of that charge, so far as it affects you, is that you 
substituted poor cotton for the good cotton you seized. One charge is the substitution of 
poor cotton for good, and the other is that you never accounted for the cotton sold.—A. I do 
not understand it. 

Q. Did you order that cotton sent to the pickery.—A. It was in the custody of Wilson ; 
I was not about Mobile much during the custody of that cotton. 

Q. Did you order it sent to the pickery.—A. I did not order it myself; I gave no written 
order about it. 

Q. Did you give any order, verbal or written.—A. No; I gave no verbal or written order 
further than that I told Hurtel and Wilson that whenever cotton was taken possession of 
that was in decaying and wasting condition to have it put it proper order. 

Q. Did you not move to have the cotton sold.—A. I think I did ; I think that as the court 
was about winding up, and the judge and officers of the court were about leaving, I got 
Andrews, Wilson, and perhaps somebody else, to go with me to this warehouse of Hurtel’s 


to look at the condition of the cottou, to see whether a proper application could be made for 
the sale of it. 

Q. You did move to have it sold then.—A. I think I did. 

Q. Did you employ counsel to have it done.—A. No. 

Q. You did not employ Judge McKiiistry.—A. I do not think I did in that case; I had 
employed him in several cases. 

Q. You did not pay him.—A. Yes; I paid him a fee at other times. 

Q. Did you pay him in that case.—A. I do not recollect; I have employed him in several 
cases, I think ; I cannot say whether I paid him a fee in any particular case. 

Q. Did you employ Judge McKinstry in this case.—A. I cannot say whether I employed 
Judge McKinstry in this case or not. 

Q. If you had reported the necessity in your opinion of a sale to those who represented 
the United States, and they did not choose to move for the sale, and the other side, the 
claimants of the cotton, did not move for the sale of it, will you say what interest you had 
in employing a lawyer to have it sold.—A. I did not say I employed any lawyer in that 
case. 

Q. Well, supposing you did.—A. I cannot suppose a thing which I am not aware I did. 

Q. What interest did you have in having the sale of this cotton made —A. Because I 
looked upon the cotton after examination—which was the first time I ever looked over the 
cotton—as in a perishable condition, decreasing in weight and decreasing in value, and 
I thought it would be to the interest of all parties to have a sale of it. 

Q. Why did you not communicate the information and let the parties take their own 
course.—A. It was in my custody; I made an application to the court for the sale, and I 
presume proper notice was given to all parties. 

Q. Did you not direct George Huggins Cleveland to take out a large amount of that cot¬ 
ton from this warehouse.—A. No ; I did not. 

Q. Did you give any order to Cleveland.—A. No ; Ido not know that there is such a man 
on earth. 

Q. Before you sold the cotton were you not informed that it had been made way with and 
other cotton substituted in its place.—A. No. 

Q. Had not my partner, Mr. Herndon, said so.—A. Not previous to the sale. 

Q. Did he not call upon you and ask you if you had not received a despatch from the 
Attorney General prohibiting the sale of the cotton.—A. I think, either on the way to the 
sale or at the sale, Mr. Herndon asked me if I had not received a despatch from Washing¬ 
ton to stop the sale of this cotton. 

Q. Did he not show you a copy of the despatch that had been sent to him.—A. He may 
or may not have shown it; I do not recollect. 

Q. Had you not received the despatch from the Attorney General prohibiting you from 
selling the cotton, telling you in substance Planters’ factory cotton must not be sold.—A. 
No, sir. 

Q. Did you not receive a despatch in regard to the Planters’ factory cotton.—A. No ; I 
never received a despatch previous to the sale, and I did not know of the existence of any 
such despatch previous to the sale. 

Q. Did you not know of this despatch previous to the sale: 


“ Washington, May 23, 1866. 


“ L. Worrall, Esq., United States Attorney, Mobile: 

“Stop all further proceedings against Planters’ factory cotton, and report facts. 

“JAMES SPEED, 

“Attorney General." 


A. I had no business with that despatch. 
Q. Did you know of it.—A. I did not. 
Q. Here is another despatch : 


“ Washington, D. C., June 25, 1866. 


“ L. Worrall, Esq., United States Attorney, Mobile, Alabama: 
“ Marshal must not sell Planters’ factory cotton. 


“JAMES SPEED, 

11 Attorney General." 


A. I had no business w r ith that. 

Q. Had not Mr Herndon shown you a copy of that despatch previous to the sale.—A. He 
may have shown it on the day of the sale. 

Q. Did he not show it to you two days before the sale.—A. I cannot tell; he may and 

may not. . , 

Q. Did I not inform you in my office in the back room that the cotton you had seized had 
been made way with and other substituted in its place.—A. No; I do not think you did ; I 
have no idea you told me any such thing. 

Q. When you were informed that it had been made way with before or after the sale, 
what steps did you take to inquire into the facts in regard to whether it had been made way 


374 


with or not.—A. The first thing 1 1 did after hearing this report—I knew nothing about it 
until perhaps a week after the sale: no suggestion of the kind was made to me until a week 
after—of the substitution, I went to Hurteland made inquiry of him ; I told him that such 
and such things were asserted, and I wanted to know what opportunity any one had had to 
change the cotton while it was in his custody ; he remarked that some of the cotton had been 
sent to some pickery over which he had some control; he asserted that no one had had the 
opportunity of making the change, and I made no further inquiry and took no further action 
in the matter. 

Q. When you wrote this charge and was coming on here, you knew very well that the 
matter would be inquired into.—A. I knew very well that the only way I could get at 
the truth of it would be to sue you for slander, and then I could ascertain whether this 
thing was true or not; I had no power to institute legal proceedings to put men under oath 
to know whether this was true or not. 

Q. You knew you were to be examined when you came here on this point —A. I did not 
know. 

Q. Did you not have reason to believe it would be inquired into.— A. In all probability I 
supposed it would. 

Q. And you were informe 1, shortly after the sale, of the charge that the cotton had been 
substituted.—A. I was informed, as I said before, about a week after, or at least a rumor 
came to me that a change had been made in a portion of this cotton ; I went immediately to 
Hurtel and inquired about it; his answer satisfied me until I happened to take up that docu¬ 
ment containing your printed charges, on a counter in a public store in the city of Mont¬ 
gomery ; since that time I have not had an opportunity to put men on their oaths to ascertain 
whether it was so. 

Q. You did not put yourself to any trouble to make any further investigation than the 
general inquiry.—A. Not after the answer of Hurtel; until I saw these printed charges I 
thought nothing about it. 

Q. Now in reference to other cotton which you had about that time levied upon which 
was claimed by a man by the name of Williamson, and was represented by General Withers 
as the factor, you were not informed of that being made way with as the 239 bales were.— 
A. Not until after the sale of the 239 bales; I was informed, I think, by Colonel Withers 
himself. 

Q. Do you know Joseph C. Palmer, a man engaged in the cotton business in Mobile.— 
A. There was a man by the name of Palmer there; I do not know what he was doing; I 
think he moved to New Orleans; I think he was a member of a commission firm in New 
Orleans; I am not certain ; I know but very little about the man. 

Q. Now when General Withers demanded the restoration of his cotton it was upon the 
ground that it had been made way with while in your possession.—A. Yes ; that it had been 
made way with while in my possession, or at least while under seizure. 

Q. You were in the custom-house back of the court-room negotiating with General With¬ 
ers about it, were you not.—A. I had no negotiations to make. 

Q. Did you make any negotiations with General Withers.—A. I had no negotiations to 
make, and I have had none. 

Q. Did you not send Jacob Wilson to this man Palmer in New Orleans to get the money 
to make good this General Withers cotton.—A. No ; I did not send him to New Orleans. 

Q. You did not send Jacob Wilson to New Orleans.—A. No; I sent Wilson to New 
Orleans several times after counterfeiters and things of that sort. 

Q. But you did not send him to New Orleans to see Palmer about this General Withers 
cotton.—A. No, sir. 

Q. Did he not go by your consent and approbation.—A. It is necessary to give an expla¬ 
nation here in order to give my answer. 

By Mr. Eldridge: 

Q. Answer the question first.—A. I would like to make an explanation, so as to answer 
the question. 

Q. First answer the question, and then, if it is necessary to make an explanation, you 
can make it. You know that is according to rule.—A. Well, perhaps I could make a better 
answer by giving the explanation. 

Q We have told you what the rule is. Follow that, if you please. The question is, did 
you not consent that Jacob Wilson should go to New Orleans.—A. I consented for Wilson to 
go to New Orleans and carry a letter. It seems that General Withers, who was the commission 
merchant of this party, had made a motion in the district court of Mobile against Hammond, 
or Hurtel, the proprietor of the warehouse, and during the pending of the motion, or the 
investigation of it, Hurtel came up to my office and asked me if I would let Wilson go to 
New Orleans for him to carry a letter. I objected at once. I told him I wanted Wilson for 
ether purposes; but I consented that he might go for Hurtel. 

Q. Do you know whether Hurtel is now dead.—A. I do not know. I have not been at 
Mobile in six months. 

Q. Have you not heard of Hurtel’s death.—A. No; I do not know that he is dead. 

Q. Did you not get from New Orleans, through Jacob Wilson, some $4,000 of the Withers 
cotton money and pay to him.—A. Pay to who. 


375 


Q. Pay to Geneial Witheis, or make Jacob Wilson do it.—A I bad no money for this 
purpose. 

Q. You knew nothing about it. —A. I received no money. 

Q. Do you know what Hurtel sent Wilson to New Orleans for.—A. I do not know. 

Q. Did Wilson, as your deputy, bring $3,000 or $4,000 from New Orleans and pay to 
Geneial \\ itkers. A. I do not know I know Wilson brought me a receipt from General 
Withers toi the cotton, because I told Wilson that he must have the thing satisfied, and I 
must have a receipt according to the order of the court; all that I wanted was a receipt 
from Withers for the cotton. 

Q. Did you not understand from Hurtel that he wanted W 7 ilson to go to New Orleans 
upon some business connected with this cotton.—A. He did not say a word to me about it. 
He asked me if I would let Wilson go to New Orleans. 

Q. You say you wanted Wilson for other purposes, and was unwilling to have him go. 
What did he say to you that was sufficiently influential with you to forget your unwilling¬ 
ness and allow him to go.—A. Hurtel and Wilson both came to me, I think. As soon as 
General Withers informed me of this matter I called Wilson into my office and told him that 
this cotton had been under his supervision, and he must have the order of the court com¬ 
plied with. 

Q. What order of the court.—A. The order of the court was, I think, for the restitution of 
the cotton to General Withers, and the order required him to obtain a receipt from him and 
file it in the court. 

Q. How do you happen to recollect the orders of the court so distinctly in some cases and 
in others you cannot remember anything about them.—A. I recollect that very distinctly. 
Some orders I can recollect much better than others 

Q. You knew very well that the accusation made by General Withers was that this cotton 
had been made way with while in the custody of yourself, or in that of your deputy, Jacob 
Wilson.—A. I sent Wilson to General Withers to deliver the cotton to General Withers and 
take his receipt. General Withers, I think the next day, came up in the office and said that 
W ilson had proposed to deliver him a lot of cotton; but it was not the same cotton. 

Q. The same cotton was what.—'A. The same cotton as had been shipped to him. I then 
told Wilson that he must have the matter straightened up. 

Q. You knew that General Withers had been to Judge Busteed with such a complaint.— 
A- I did not know any such thing at that time. 

Q. Were you not back of the court-room there, coming into it talking with somebody, and 
going back and talking to General Withers, before you sent Jacob Wilson to New Orleans.— 
A. I do not think I ever mentioned the matter to General Withers more than twice. I went 
in and out frequently. 

Q. Did you put yourself to any trouble to ferret out and ascertain what had become of that 
cotton.—A. Yes; I felt solicitous about the matter as soon as General Withers said it was 
not the same cotton. I insisted upon Wilson getting the same identical cotton and returning 
it to General Withers, and get Withers’s receipt. I told him he must do it; that he must 
have the matter settled ; that I wanted nothing unsettled ; I wanted the business finished up 
as he went along. Wilson told me that he had gone with Withers or his partner to Hurtel or 
to Hammond, (perhaps to Hurtel,) and informed him of this accusation of Withers, or of 
Withers’s statement, and he seemed to be indifferent; so Wilson represented tome about the 
matter ; and the next thing I heard from Withers was that he had made this motion against 
me or against the custodian of the property. I think I went to Hurtel myself, (either to 
Hurtel or to Hammond, I think to Hurtel,) upon the report of Wilson, and insisted that the 
cotton was in his custody ; that it had never been out of his hands; and I exhibited to him 
the receipt for this lot of cotton, whatever it was. He showed indifference towards me. I 
told him that there would evidently be a suit in regard to it, and the affair remained in that 
way, I think, for a few days ; and as I said before, the next thing I heard was that this motion 
had been made against Hurtel and Hammond, or at least against the custodians of the property. 

Q. Did you not consider that your integrity or the integrity of your deputy required you 
to probe that matter and find out where the cotton was.—A. As soon as I saw. the indiffer¬ 
ence of the warehouseman I became solicitous about it, because I was apprehensive that I 
might become pecuniarily responsible; but as to the impugning of my integrity, I felt entirely 
easy upon that subject, because I had never seen the cotton; I had the receipt from the 
warehouseman. The warehouseman had been the custodian of the cotton. 

Q. Did you turn Jacob Wilson out of his office as deputy when you were informed of that.— 
A. No; because I had no idea that Wilson had anything to do with it. 

Q. Did you not consider, with reference to retaining that man as your deputy, that you 
were required to probe into the matter of the disposition of this cotton —A I had the utmost 
confidence in the integrity of this man and in his fidelity, and I was satisfied if there had 
been any stealing when the report was made to me, that it had been done in warehouse, and 
I had no reason in the world to believe that Wilson had anything to do with it, no more than 
I had myself. 

Q. Will you answer the question now; did you not consider, with reference to retaining 
that man as your deputy, that you were required to probe into the matter of the disposition 


376 


of this cotton.—A. I will state that I inquired; I went to the very source—the warehouse¬ 
man—myself, where I thought I could get the best information. 

Q. I asked you, did you not feel required to probe the affair to the bottom and get at the 
facts; answer whether you did or not.—A. All the requirements there were of me was to 
return the cotton to Withers and get his receipt, according to the order of the court. 

Q. Was $14,000 the precise sum of money which yon paid to Worrall as the result of this 
239 bales of cotton—the 239 bales sold on the 28th of June, 1866, for $17,805; now the 
question is, whether the $14,000 was the precise amount you paid to Worrall.—A. I cannot 
tell; I paid the charges on the cotton out of the proceeds <>f the sale. 

Q. What charges do you refer to.—A. There was a variety of charges—the warehouse 
charges, repairing charges, I think steamboat charges, and I do not remember all the items 
entering into the amount. I paid Worrall the amount less whatever the vouchers were for 
charges upon the cotton that I had paid out of the proceeds. 

Q. Can you come within a thousand dollars of what the charges were upon the 239 bales 
of cotton.- A. As I said before, the charges were heavy upon that lot of cotton. It was in 
bad order; so I was informed. The bills were all paid out, I think, on the day of sale; they 
were brought in, and I submitted them to Wilson, who had the management of my business 
in the matter. He said they were right, and I directed my clerk to pay them. 

Q. Was not Lawrence Worrall in Mobile when you sold that cotton.—A. I do not think he 
was. I am not certain about that. 

Q. Do you know that he was there and received this despatch of the 23d of December, 
1866, which has been read to you,—A. I think there was an old gentleman in the clerk’s 
office by the name of Cuthbert, acting as a sort of clerk, deputy clerk, or something; and 
Cuthbert some time after the sale, I think, showed me the despatch, or told me there was a 
despatch of that kind, I do not recollect which. 

Q. Do you not know that some days after the 25th of June, 1866, Lawrence Worrall 
received a duplicate of a despatch from the Attorney General’s office, dated 25th June, 1866.— 
A. I do not know what Worrall received. 

Q. Do you not know whether Worrall was in Mobile or not—A. I do not know. I cannot 
recollect. 1 was not Worrall’s custodian. 

Q. Will you please look at the affidavits here shown you (which are in the case) of R. D. 
Price, Charles Blackledge, States G. Deas, John Johnson, jr., Charles Jackson and John 
Dooley, Hugh McCaw, Sherwood Hall, Thomas H. Herndon, E. D. Sandford, and state it 
you did not know that these affidavits had been sent on to the government in order to remove 
you from your office.—A. Do you want me to read them all over. 

Q. You can look them over so as to satisfy you and enable you to answer the question. 
Do you know it to be the fact that certain affidavits were sent on by these gentlemen for 
your removal.—A. I never knew that to be the fact. 

Q. Have you not heard that it was the fact.—A. I never could ascertain who made the 
affidavits except one man. 

Q. You never knew that these affidavits were made.—A. No. 

Q. Did you get Judge Busteed to examine the affidavits which had been filed here for 
your removal on account of this cotton transaction and inform you of them.—A. I do not 
think that Judge Busteed ever gave me such information. The only man who ever gave me 
the information was old man D. H. Bingham, who was here at Washington during the war, 
and remained here some time after. He is the only man who ever gave me the information. I 
applied to Attorney General Stanbery for the papers. He said they were private, confiden¬ 
tial. and refused to give them to me. Old Judge Bingham wrote me that General Swayne, 
Major Semple, and some other parties—you, I believe, among the rest—had applied here for 
my removal, and I had better come on and attend to it. Upon the strength of that letter I 
came on, and the morning after I arrived here I went up to the Attorney General’s office. 
Judge Bingham stated that affidavits and petitions asking for my removal had been filed 
here. I never knew who made the affidavits except as informed in the letter written by Mr. 
Bingham, and I have no recollection of these parties being mentioned. I applied to the 
Attorney General to know what the charges were on file in his office against me, and stated 
that I wanted an opportunity of meeting them and contradicting them, and he replied that 
he could not show them to me ; that they were private and confidential. 

Q. At the time motion was made by General Withers respecting this cotton, did you not 
know that Judge Busteed had been on to Washington city to endeavor to prevent your 
removal as marshal.—A. I do not know that the judge came on here expressly for that pur¬ 
pose. The judge and myself fell in together at Montgomery, and I think he stated that he 
was coming here for the purpose of meeting the Stanwood family. I know the judge expressed 
a good deal of interest in my favor to me and to others in my presence, and that it would be 
wioug not only to me but perhaps to the interests of the government to remove me. 

Q. Did you come on to Washington with Judge Busteed.—A. We came on in the same 
cars together. I got upon the cars at Montgomery. He had come, I think, from Mobile. 

Q. How long were you here together.—A. Some two, three, or four, days. I do not recol¬ 
lect precisely. I know we saw every senator, at least I did, pretty much every senator. 

Q. And do you say that he did not make any mention to you of having seen these affidavits, 


377 


oi copies of them. A. I do not think lie mentioned these affidavits. In fact it was impos¬ 
sible to ascertain who had made affidavits or applications. I could not get them. 

Q. Can you swear whether he saw them or not.—A. I do not know whether he did or not. 

Q. I asked you whether he did not inform you of having seen the affidavits for your 
lemoval, based upon the Conversion of the 239 bales of cottou, and the fraudulent substitution 
of others in place of them. A. I do not think he ever gave me any such information, but I 
should have been very glad to have obtained information just about that time. 

Q. You talked with him pretty generally about the matter of your removal from office.— 
A. Yes ; I presume we did. 

Q. Did you stop at the same hotel with Judge Busteed in Washington.—A. Yes; I think 
lie stopped at Willard’s, and I stopped at the same place. 

Q. How tar apart were your rooms.—A. If I had a diagram of the hotel I could tell you. 
I could not answer the question, because I have no idea of the room I stopped in, or what 
room Judge Busteed stopped in. 

Q. Can you not tell us whether or not you were on the same floor with Judge Busteed.— 
A. I do not think that we were on the same floor. I know I thought that they treated Judge 
Busteed with rather more favor than they did me. and gave him a better room. 

Q* Did you converse with Judge Busteed freely about your removal, the prospect of pre¬ 
venting it.—A. We talked about it frequently, as a matter of course. 

Q. In reference to the 662 bales of cotton belonging to parties in Pickens county and in 
Mississippi, in reference to which the libel was dismissed, and you brought me a memoran¬ 
dum of costs in my back room.—A. That was the lot of cotton the Mississippi thieves were 
after, was it not ? 

Q. I know nothing of Mississippi thieves; I am speaking of the cotton which the Sec¬ 
retary of the Treasury had siezed first and then the Attorney General reviewed the whole 
case and ordered it dismissed, and you came into my office ; did you bring the cost bill into 
my office for settlement in that matter.—A. I have been trying to locate that lot of cotton. 
I recollect either you came to me for a bill of charges—I think you yourself came to ascer¬ 
tain the bill of charges. 

Q. Did you come into my office with your cost bill.—A. I think I did, at your request; 
either at your request or at the request of the man that was in your office. 

Q. What was the amount of this bill.—A. I have no recollection now. 

Q. You recollect that it was paid.—A. Yes. 

Q. Under a protest.—A. I think that it was paid under an execution. 

Q. Did you have, an execution for costs or did you bring your cost bill in as a mere mem¬ 
orandum, like a common account in one line.—A. I do not reccollect whether it was you or 
Herndon who came into my office and wanted to know what the bill of costs was, and I was 
requested to briug the bill of costs to your house. I think it was in the eveniug, and I 
think your partner wanted to pay it then ; you got irritated and mad, and swore you would 
not pay it then ; and the warehousemen gathered the cotton while you were there, and 
scattered it all over town. 

Q. Were you paid the bill of costs.—A. I think I was. 

Q. Did you come ultimately and demand $1,000 more, or send Jacob Wilson—A. No. 

Q. Failing to get $1,000 or $1,100 more, did you go and seize the cotton again.—A. After 
you had deported yourself to me in that way, I think I made an affidavit and employed Judge 
McKinstry to make an application to the court for an execution or for a writ of seizure against 
this lot of cotton or any part of it; and with that process I think either 60 or 100 bales were 
seized. 

Q. You swore that you did that under the order of the court.—A. I think that was the 
case; I know I employed Judge McKinstry in the matter as soon as you refused to recog¬ 
nize my claim. 

Q. Your first demand was paid, was it not.—A. No; you got terribly outraged, and swore 
you would not pay it. 

Q. Was not this the way the $1,000 or $1,100 was paid ; did we not inform you that we 
would not pay it unless you got an order of the judge, and did you not go and get the 
endorsement of the judge on the account.—A. I do not think the judge endorsed the account. 
I do not think he had anything to do with the account; I think the order to me to release 
was perhaps on the condition that the expenses incurred should be paid by the claimants or 
owners. 

Q. How did the factor get it to scatter it over town, if you did not release it.—A. I did not 
release it. 

Q. How did the factor get possesion of it.—A. I don’t know ; I suppose as they did of 
cotton all over the country, vi et arrnis. 

Q. From a warehouse.—A. I suppose so ; I have no recollection of giving an order for its 
release. 

Q. Were you not present in the judge’s room with the judge, Worrall, and George Hug¬ 
gins Cleveland when the judge examined Cleveland in relation to the substitution of the 
Withers cotton, and also of the 239 bales out of the pickery, and as to the orders under 
which it was done.—A. I was in the judge’s room frequently; but I have no recollection ot 
this man Huggins Cleveland. 


378 


Q. Do you remember the fact of the examination in regard to this matter, and ot being 
present when it took place.—A. I have no recollection of being present with any man ot the 
name of Huggins Cleveland. 

Q. Have you any recollection of being present when such an examination as is referred to 
was held, whether Cleveland was present or not.—A. I have no recollection about any 
examination in the judge’s room ; all the examination I recollect was made in the court-room. 
The judge made an examination in the court-room, and had witnesses before him. 

Q. Were you present when any one was examined, and do you know whether any man 
was examined or not.—A. I do not know. I have no recollection ot being present in the 
judge’s room when any witness was examined. 

Q. When cotton comes to Mobile can the consignee get possession ot it until he pays the 
freight.—A. I am not in the mercantile and cotton business and do not know. I cannot 
answer that question. 

By Mr. Semple : 

Q. Did you ever have in your possession any other order of distribution in the case in 
which you paid the money to McCroskey than the one you furnished to Storer, the deputy 
clerk; please answer, yes or no.—A. I think that there was a decree- 

Q. I am not asking you about a decree. I ask you, (repeats the question.)—A. My 
recollection is that I had two papers ; that I was furnished by the clerk with two papers ; 
one was a decree and the other seemed to be an order of distribution. I acted under both, 
and retained them in my possession. 

Q. Were both received at the same time.—A. Yes ; I think they were both handed to me 
at the same time. 

Q. By whom were they handed to you.—A. I think by Judge Smith, the district attorney. 

Q Was he district attorney at the time he handed them both to you.—A. No; I do not 
think he was. 

Q. Was the other paper which you referred to a decree of distribution, or an order of dis¬ 
tribution, dated June 4, 1867.—A. I do not recollect the date. I have no recollection of tlie 
dates. 

Q. Was it an order of distribution made after you went out of the office of marshal.—A. I 
cannot tell. I have no recollection of the dates. 

Q. If it was dated on June 4, 1867, it must have been after you went out of office, must it 
not.—A. Yes : because I went out of office some time in April, I think. 

Q. Please explain to the committee what the papers were which you did have in your 
hands authorizing you to pay anything to McCroskey in that case.—A. As I stated, one of 
the papers seemed to be a decree—a decree of condemnation—and the other seemed to be an 
order of distribution, and in fact was an order of distribution, upon which I settled the mat¬ 
ter with the clerk, of course. 

Q. Do you know the difference between the order and a decree; the judge intimated that 
you did not.—A. The two papers were not alike exactly, I think. 

By Mr. Eldrtdge : 

Q. Did these papers bear the same date.—A. I have no recollection of the date ; as to 
whether they were of the same date or not. 

Q. When you acted under a decree of the court were you always furnished with a copy 
of the decree. — A. Generally. 

Q. What you understood these papers to be was that the decree of condemnation was fur¬ 
nished you, and the order of distribution, that is the order determining to what parties you 
should pay the money; these were the two papers you had.—A. Yes, generally. 

Q. This order of distribution you had, and to which you have referred, was the one you 
furnished Storer, was it.—A. Yes; I think it was the order of distribution I furnished 
Storer. 

Q. It was the one you had at the time you received these two papers, and the same one 
to which you have referred.—A. I think so ; that is my recollection. I am not certain upon 
the point. 

Q. Did you have any other order of distribution in that case except the one which you fur¬ 
nished Storer.—A. I do not know that I had. I do not think I had. 

By Mr. Semple : 

Q. Had you not deposited the money collected from Morris, in the case of the United 
States i‘s. Morris and Johnson, about $30,000, in the national bank at Selma, and was it not 
there when the bank stopped payment.—A. I cannot say as to that identical money ; whether 
I deposited the entire amount of any one collection. I did not keep different collections 
separate. I made no special deposits of any special money. 

Q. Did you have $30,000 in money other than that which was deposited in the national 
bank at Selma in your possession at the time the bank suspended payment.—A. T do not 
k now ; I do not recollect. 

Q. Was it not your habit to deposit all large sums of money which came into your hands 
for the United States in the national bank at Selma.—A. No, sir; I looked upon that insti¬ 
tution with a good deal of suspicion, and 1 was not disposed to risk my own funds there, 



379 


or at least any portion I thought I would be interested in. My idea was to keep about the 
amount ot money in the bank that might be due to the government, and I endeavored to 
make settlements with parties as rapidly as possible, so as to keep as little money on hand 
as possible. 

Q. Did you at the time the national bank of Selma suspended have in that bank about 
the amount which you believed was in your hands for the government of the United States.— 
A. L thought I had about that amount. 

Q. Youv puipose as to keep about the amount ot United States money which you were 
authorized to deposit there.—A. Yes. 

Q. If that was the fact, why did you pay money to McCroskey, which you have said 
you paid him, if you had all you believed the government of the United States entitled to 
deposited in the national bank at Selma, after that bank suspended payment.—A. From the 
fact that this man McCroskey was continually annoying me about the money that was 
coming to him, and I was not disposed to pay it to him until I could be furnished with the 
proper orders. And it just happened that if the bank had held on I should probably have 
made another deposit in a day or two. 

Q. Do you remember whether the national bank of Selma suspended on the 26th of 
March, 186/.—A. I have no recollection what day the bank suspended. 

By Mr. Eldkidge : 

Q. Did you pay the money to McCroskey which was in your hands.—A. I think I did. 
I am pretty certain I did I paid it to him in my office. 

Q. Are you sure you paid it—or did Smith.—A. Smith may have been present—I think 
he was—when I paid McCroskey the money. I paid it to him in currency. 

Q. Can you give us any idea of the amount you did pay McCroskey.—A. It was half 
the amount after deducting. I do not recollect what the judgment was. 

Q. Do you mean that it was the amount which was due McCroskey, less the fees of court 
and such legal fees as the fund was liable to pay.—A. I think the requirement was to make 
such deductions for the amount of court expenses and things of that sort, and the remainder— 
one-half of it.—was to be paid to E. E. McCroskey : and that amount I paid him, and took 
his receipt on my docket. 

Q. Did you take his receipt for the money and allow Smith to pay him, or did you 
actually pay the money over to him yourself.—A. I did not allow Smith to pay him. I did 
it myself, and I think I paid it in currency. I think I recollect it very distinctly. 

Q. Did not J. Q. Smith give to you and get a note of Robert W. Smith, or a draft, check, 
or some sort of paper upon Walsh, Smith & Company of a considerably larger amount, and 
pass that to McCroskey : and did not Smith account to you for the difference between the 
amount going to McCroskey and the note, draft, or check which you gave him.—A. No, 
sir; it is not a fact. 

Q. Did you not give to Smith a draft.—A. No. 

Q. Did you not give him a check or note.—A. I did not. And now I wish to make an 
explanation: I had a note upon Robert W. Smith, of Mobile. Judge J. Q. Smith was going 
to Mobile. I gave him this note to collect for me of this man Smith in Mobile. That was in 
Montgomery. I went into his office and carried the note ; he was going to Mobile that 
night The next day I left for Selma myself. I did not return to Montgomery for two 
weeks, and when I returned I had a settlement with J. Q. Smith of moneys. We had been 
passing money between us, and he accounted to me and paid me a large amount of money— 
an amount of money equal to this draft. Whether he collected it, or whether he has col¬ 
lected it to this day, I do not know. 

Q. Do you know whether the draft was passed by J. Q. Smith to McCroskey, in payment 
of McCroskey’s share of this distribution fund.—A. I tell you I paid McCroskey myself. 

Q. I understood you to state in your testimony that you paid this money to McCroskey 
yourself, and paid it in currency.'-A. You understood me correctly. 

Q. Then I understood you to state that you had this note, and that you were goingaway 
and endorsed this note payable to J. Q. Smith or bearer, and endorsed it solely for the pur¬ 
pose of collection ; is that the note to which you now refer.—A. That is the note. I never 
gave J. Q. Smith but one note on Robert W. Smith for collection. 

By Mr. Semple : 

Q. Did not J. Q Smith, at the time you paid McCroskey this money, receive .$6,000 as a 
fee from McCroskey.—A. I do not know anything about it. I know nothing about 
McCroskey’s having paid fees. 

Q. Did you reserve any such sum for Smith.—A. No. 

Q. Was any such sum paid to Smith in your presence.—A. I saw no such sum paid. I 
3o not not know what Smith and McCroskey did. 

Q. Do you remember the remark which J. Q. Smith made to McCroskey in your presence, 
that he took about $4,000 for Weaver’s share in that case.—A. I have no recollection about 
it. I paid Weaver money in the same way. 

Q. Not in the same case.—A. No; I do not think it was. 

Q. Have you any idea of what you paid McCroskey.—A. There are two cases which I 


380 


have got mixed up in my head. I do not know whether it was the Louisiana or the Mitchell 
cotton, or the Pickett cotton. 

Q. This was the Josiali Morris cotton—the 120 bales lot.—A. We knew the two lots as 
the Mitchell cotton and the Pickett cotton. 

Q. This was not either. This was the Thomas H. Watts cotton.—A. I get them mixed 
up. I can hardly recollect the distinction. 

By Mr. Eldridge : 

Q. The question is this, if you have any idea of the amount of money you actually paid 
over to E. E. McCroskey.—A. No. 

Q. Can you tell us whether it was anywhere from $2,000 to $10,000.—A. I think it was 
between $0,000 and $10,000; I cannot tell. It may have been a larger amount. 

Q. The sum to be divided, you recollect, was somewhere in the neighborhood of $30,000.— 
A. Either $25,0U0 or $30,000, I do not recollect which. 

By Mr. Smith: 

Q. The record I showed you yesterday shows that about $30,000 was the sum to be 
divided.—A. I think it was somewhere between $6,000 and $10,000 which McCroskey 
received and receipted to me for. 

By Mr Eldridge : 

Q. And the sum, whatever it was, was paid to him by you in currency.—A. I took it out 
of my safe, and counted it out and paid it to him, my recollection is, and I think I have a 
pretty distinct recollection. 

By Mr. Semple: 

Q. If the decree was $30,000, and you only paid him $10,000, it must have been because 
the expenses and charges were $10,000, must it not.—A. I do not know. I do not think I 
am competent to answer that question. It is a question the answer of which would have to 
be drawn from inference. 

By Mr. Eldridge : 

Q. Oh, no ; it is a mere matter of computation. You are perfectly capable of making it 
at a glance.—A. I do not recollect whether the officers’ fees were deducted or not out of the 
principal, and then the remainder- 

Q. Did you pay McCroskey all at once.—A. I think I paid him all at one time. I think 
it was in the morning, and I paid it to him all at one time. 

By Mr. Woodbridge : 

Q. Do I understand you to state that you paid this money to McCroskey.—A. Yes ; you 
understand me correctly. 

Q. And that you paid it in currency.—A. Yes ; in federal currency. 

Q. And you paid it all at one time.—A. That is my recollection, whatever the amount was. 

Q. What was the amount.—A. I have no idea what the amount was. 

Q. Where were you when you paid this money.—A. I was in my office at Montgomery, 
Alabama. 

Q. About what time was it.—A. I think it was in the summer of 1867. 

Q. Can you not give the time more nearly ; can you not tell the month.—A. No, sir; it 

was either in July or August, I think. 

Q. Who was present when you paid the money, as near as you know.—A. I do not recol¬ 
lect. The office then was a sort of public place. Many were running in and out all the 
time, and I do not know who was present. 

Q. Was James Q. Smith then district attorney.'—I do not think he was. I do not know 
when Smith went out of office. 

Q. Was he present in your office when this money was paid.—A. 1 do not know whether 
he was or not. 

Q. Do you recollect who was present.—A. I will state there were several parties that were 
abusing McCroskey a day or two before for being an informer, and, I think, the day after 
or the second day after I paid the money, they were swarming in there after McCroskey for 
their money. I was asked 50 times, I suppose, if I had paid the money, and I just turned to 
my docket and referred them to his receipt. I know there was a lawyer there after me. 

Judge Busteed. Who was that.—A. Barney McKinney. 

Q. Had you and Smith had any conference respecting the money you were to pay to 
McCroskey.--A. I think I conferred with Smith about paying the money to McCroskey, 
and I held it off then some time after I got the process. 

Q. Had there not been an order of court that after deducting the expenses you should pay 
McCroskey his distributive share as informer.—A. I think some week or ten days after I 
got the process I had orders to pay McCroskey. 

Q. Then before you paid him there had been an order that, after deducting expenses, you 
should pay McCroskey his distributive share as informer.—A. Yes ; I acted under an order. 

Q. Then why should you consult with J. Q. Smith or anybody else about it.—A. I did 



381 


not consult with him whether I should pay McCroskey, but Me. was after me about paying 
the money, and I insisted that I had no authority to pay it without an order. 

Q. You said that it was 10 days after you got the order before you paid him.—A. Yes. 

Q. Then when you paid McCroskey you paid him under the order of court —A. Yes ; it 
took me seveial days to make the computation ot expenses, &c., and to ascertain what his 
distributive share was. 

Q. What was the necessity of consultation with J. Q. Smith or anybody else about paying 
it it you had an order ot court.—A. I do not know that I ever had any consultation with 
Smith about the matter after I got the order; the only consultation I ever had with him was 
telling him I could not pay McCroskey without an order. 

Q. Do you not recollect that this matter was consummated and negotiated through the 
medium ot J. Q. Smith, instead of being paid by yourself.—A. I do not recollect any such 
thing. I paid McCroskey myself in currency. 

Q. You paid him his distributive share, less court fees, &c., as you were ordered to pay 
others.—A. I paid him his distributive share. 

By Mr. Woodbridge : 

Q. It is proper to state to you that there is a wide discrepancy between your testimony and 
McCroskey’s.—A. I cannot help that. 

Q. I will read you this passage in McCroskey’s testimony, containing the question put to 
him and his answer: 

“ Q. State to the committee whether distribution was made to you as informer in the case 
ot the United States against 120 bales of cotton, Josiah Morris and J. F. Johnson ; and if 
so, state the amount; when it was paid ; and all that occurred in reference to it.— A. Yes, 
sir. There was a distribution made; I never saw the order of distribution, and I do not 
recollect distinctly the time it occurred. The paper now shown me in my handwriting 
refreshes my recollection on the subject The distribution, I think, was for $14,245; of 
which my share was one-half. It vs as the amount set down as coming to me. I do not 
mean to say that I got that amount of money. What occurred in relation to it was in Mont¬ 
gomery, in the office of J. Q. Smith. I do not think he was district attorney at the time. 
As to the conversation, I do not recollect what was said, except that Smith sent for me at 
one time and gave me some money. My understanding was that the money realized from 
the judgment in this case was deposited in the First National Bank of Selma, and there it 
remained. The order of distribution was given to Smith, who arranged with the marshal to 
have a payment made out of some other funds he had on hand; it was not money; it was 
the endorsement of a firm in Mobile for a check of $16,000, or something like that, which 
Mr. Smith took and gave him the difference between the judgment and the amount of the 
paper, as he told me. ” 

Now, is that a correct version of this transaction.— A. As I said, I know nothing in the 
world about any arrangement between Smith and McCroskey. I paid McCroskey the money ; 
and whatever arrangement they had among themselves I know nothing about. 

Q. Could there have been any arrangement between Smith and McCroskey if you paid 
him the money.—A. I cannot tell; if there was I was not aware of it. 

Q Did you or not give this paper on Walsh, Smith & Co. to Smith for the purpose of paying 
McCroskey.—A. I gave it to Smith to collect for me at Mobile. 

Q. Did you receive the pay on it, before or after you paid McCroskey.—A. I gave Smith 
a note to collect some weeks before I settled with McCroskey. That is my recollection. I 
think Smith and myself had had a settlement before I settled with McCroskey. 

Q. Did or did not J. Q. Smith have anything to do, in any way whatever, with the settle¬ 
ment between you and McCroskey and the payment by you to McCroskey of his distributive 
share in this cotton case.—A. If he had anything to do with it, so far as I was concerned, I 
was not aware of it. 

Q. Did J. Q. Smith have anything to do with you in the settlement with McCroskey.—A. 
If lie did, I am not aware of it. He did not to my knowledge; Smith may have been in the 
room ; I cannot tell. 

Q. It was done in your office.—A. It was done in my office. 

Q. Did you and Smith have au office together.—A. Our rooms were close together ; 
adjoining rooms. 

Q. Was there a door leading from one to the other. —A. No; but there was a platform on 
the rear and on the front leading to our rooms. 

Q. Had you deposited in the bank of Selma all the money received on the cotton out of 
which McCroskey was to receive his share as informer.—A. I cannot say that I had, or that 
I had not. 

Q. I understood you to say, during your examination, that you deposited in that bank in 
cotton cases and others where money came into your possession, all that you supposed 
belonged to the government.—A. That was my intention ; to keep the amount of money which 
I would have to account to the clerk for, in the bank. 

Q. When you paid this money to McCroskey, had the bank of Selma failed.—A. I think 
it had. 


382 


By Mr. Eldridge: 

Q. Where did you get the funds you paid McCroskey. — A. The money I had obtained 
from various sources. I do not recollect the particular source or any one particular source. 
I had the money on hand. 

0- Why did you not state to McCroskey that the money to which he was entitled was in 
the bank of Selma, and that that bank had gone into liquidation.—A. I never said any such 
thing to him. 

Q. Why did you not.—A. I was not bound to tell him. 

Q. But as I understood you, you had deposited these funds in the bank of Selma —A. 
No ; I think you misunderstood me. 

Q. I understood you to say that you deposited all the funds you were responsible for in 
that bank except what you supposed was to be disbursed.—A. I had endeavored to keep up 
my deposits in the bank there of the money which belonged to the government, and which 
I had to settle with the clerk for. 

Q. Did you consider yourself personally responsible for the distributive share of McCros¬ 
key.—A. I certainly did. 

Q. After having deposited in the bank of Selma, a depository designated by the govern¬ 
ment.—A. I considered myself responsible for all the money that went through my hands. 

Q. You know you were not responsible for any money due to an informer and deposited 
in a depository designated by the government.—A. When the bank suspended I had not 
deposited all the money I had collected. 

Q. Have you got your account with the bank of Selma here.—A. No ; I have not. 

Q. Here is a large sum of money, some $30,000 ; it seems to me that surely you must 
know, when you realized the money, whether you deposited it in that bank or not.—A. I col¬ 
lected sometimes from the southern district and sometimes from the middle district, and I 
had my money sometimes in Mobile and sometimes at Montgomery; and really I had the 
money of the two districts mixed up together, so that it was impossible to tell which was 
which 

Q. At what time did you receive the money on these 120 bales in the Morris and Johnson 
case.—A. I do not recollect; it is a matter of record. 

Q. Was it in the spring.—A. I do not recollect; the papers and returns of the case are in 
the clerk’s office. 

Q. That is a pretty large amount of money ; I should think one would naturally recollect 
receiving it.—A. I should not recollect receiving it any sooner for that; I did not charge 
my mind with it. 

Q. Did you not state here on Saturday that you deposited this $31,000 in the First National 
Bank at Selma.—A. I did not so state. 

Q. Was not this money collected* in the month of March, 1867.—A. I cannot tell; I have 
no recollection of it, and I am not first-rate at dates anyway. 

Q. I believe this is in proof: “ Received $31,689 55 in full satisfaction of this execution, 
March 25, 1867. John Hardy.”—Did you not on the 26th of March of the same year deposit 
in the bank of Selma over $30,000.—A. I cannot recollect, unless I had my bank account 
here. 

Q. If you had deposited this money in the bank of Selma, and that bank had gone into 
liquidation, it being a depository designated by the government, would you have deemed it 
proper for you to take other money of the government and pay McCroskey his distributive 
share.—A. I do not know that the propriety of the matter ever suggested itself to me. 

Q. I think you would have been, myself, but I wanted to know what you thought, that 
is all.—A. My idea was to settle up my business ; but in consequence of the failure of the 
bank of Selma a few cases remain unsettled there yet. 

By Mr. Eldridge: 

Q. When you took the note and gave the deed to Robert W. Smith, what was the amount 
of the note.—A. I do not recollect; he and Dr. Prestridge were there together, and my 
recollection is they paid me some of the money. 

Q. What was the original amount of the note, as near as you can recollect.—A. It may 
have been $11,006 and it may have been $12,000. 

Q.* Was it exactly $16,370.—A. I cannot answer that question. 

Q. And that note you say you endorsed “Pay J. Q. Smith or bearer,” and sent it by him 
for collection.—A. Whatever the amount of the note was which was given to me in Selma 
by this man Smith, I gave it to J. Q. Smith in his office at Montgomery to carry to Mobile 
and collect the money. 

Q. And he did collect it.—A. He accounted for it; for the whole amount. 

Q. Was any part of the note paid to you in person.—A. No ; I do not think there was— 
on further reflection I do think there was. My recollection is that in Selma the note was 
taken for the full amount of the sale, whatever it was, and 1 refused to take it unless they 
paid some money, and I think there was a certain amount paid to me on the note. 

Q. On the note itself.—A. Yes ; I have a recollection of refusing to take the note unless 
a certain amount was paid. 

Q. What time was the note given you.—A. I thiuk some time in 1866 ; I do not recollect 
precisely. 


383 


Q. Was it given in March.—A. It may have been given in March 

Q. How long before anything was paid on it.-A. I think it was a very short time after ; 
because I would not take the note for the full amount. 

Q. Was there anything paid on that before June, after the date of the note.—A. I think 
t le money was paid befoie June. I would not take the note unless some portion of the sale 
was paid. r 

Q. You have no very distinct recollection about this transaction.—A. 
cise dates. 


I have not as to pre- 


Q. I hold in my hand a letter purporting to be written by Robert W. Smith, and a state¬ 
ment in connection with it of this transaction, wherein it is stated that the original obliga¬ 
tion which was taken was surrendered by you in March, 1867, taking in lieu of it the joint 
note of Charles Walsh and Robert W. Smith, payable on demand to John Hardy, United 
States marshal, toi $16,3/0; that on the 12th ot June, 1867, there was paid on account of 
the note $5,000, which payment was then endorsed on the note; that after that the paper 
was endorsed to “James Q. Smith, bearer,” by John Hardy, United States marshal, and pre¬ 
sented by J. Q. Smith for payment on the 20th of June, and the amount of $5,000 paid then 
in cash; and that he took for the balance two acceptances, each for $3,185, due and payable 
18th November, 1867; is that true or false.—A. I cannot tell; I cannot answer the 
question. 

Q. The $5,000 it says was paid on the 12th June; the note was given in March.—A. 
I do not think it remained over until June in that condition; I do not think it did, because 
I was not disposed to make the deed for the property until there was some money paid upon 
the. purchase. 

Q. Was J. Q. Smith authorized by you to settle the note in any other way than by receiv- 
ing payment.—A. All I remember was, I asked him to take the note to Mobile and collect 
the money for it. 

Q. Was he authorized by you to settle it any other way than by getting the money and 
bringing to you.—A. The only authority I gave.J. Q. Smith was to take the papers to Mobile 
and collect the money tor me. 

Q, Now r will you answer whether he was authorized to take notes by you.—A. I cannot 
say that he was authorized ; if he was disposed to take notes and pay me the money, I pre¬ 
sume he could have done so. 

Q. Did you give him authority to take notes for it.—A. No specific authority. 

Q. Did you give him any general authority.—A. Nothing further than to collect the 
money. 

Q. You cannot give any idea of the amount of money which Smith brought you upon the 
note.—A. He brought me all there was due; I think I was somewhat in his debt. There 
were several distributions that I had to pay his distributive share in, and it reduced the 
amount that he was to pay me. 

Q. Do you know what amount of money Smith collected for you on that note.—A. I pre¬ 
sume he collected all of it. 

Q. How much. Have you any idea what the sum was.—A. I think it may have been 
$i 0,000; it may have been $8,000; whatever was remaining unpaid of the note. 

Q. What is your best recollection of the sum.—A. It is impossible to state here ; I do not 
recollect. 

Q. Do you recollect that $5,000 was paid to you on the note in June after the note was 
taken.—A. I do not recollect any such thing. 

Q. Can you swear whether it was or not.—A. There had been an amount paid to me of 
the purchase; I think it was about $5,000; and it was endorsed on the note, I think. 

Q. Do you know of Judge Busteed ever receiving any money, collected as fees, or costs, 
or allowances, or otherwise, in any suit that was prosecuted before him.—A. No, sir. 

Q. Have you ever paid him any money in consideration of your office, or of any service 
he has done you.—A. No; I have never paid him anything. 

Q. Did you ever have any understanding with the judge in any way that you should pay 
him anything.—A. No. 

Q. Did you ever make him any present in consideration of what he has done for you.—A. 
No. 

Q Did you ever make him a present at all for any purpose whatever.—A. I may have 
made him a present of a pencil or a penknife. 

Q. Did you ever make Judge liusteed a present at all, for any purpose whatever, of 
money or any valuable thing of any considerable amount.—A. No. 

Q. Did you ever pay the expenses of the judge either in Montgomery or Mobile, or while 
travelling in Alabama—A. I may have paid for a dinner, or something of that sort, when 
travelling on the railroad. I think I am ahead of the judge so far as travelling expenses 
are concerned. 

Q. What do you mean by being ahead of the judge.—A. That he has paid more lor me 
than I have ever paid for him. 

Q. Do you mean to say then, and to swear, that you have never made the judge any 
present, nor done anything for him as judge iu consideration for what he has done lor you.— 
A. No, sir; I never have. 


384 


Q. Directly or indirectly.—A. I never have made the judge a present of any character, 
shape, or form. ^ 

Q. Have you ever had an understanding with Judge Busteed that you should give him a 
present at a future time.—A. No. 

Q. Have you made any bargain or contract, direct or indirect, that any of the allowances 
or fees that have been paid to you, or come through your hands, he is to have any part, lot, 
or share : n.—A. I never have. 

Q. Either directly or indirectly.—A. Neither directly nor indirectly. 

Q. Have you paid to any other person anything for him.—A No. 

Q. Have you paid to any person whatever any part of the proceeds of your office A. 
Only to the deputies. 

Q. Of what belongs to you.—A. No, sir. 

Q. Do you know of the judge ever receiving any present from any suitor in his court, or 
any person having business with him as judge.—A. I know nothing ot his ever receiving a 
present. I heard a man say that he intended to make the judge a present. 

(The committee objected to the latter part of the answer; but Judge Busteed requested 
that the witness be allowed to go on with it, and the committee yielded to his request.) 

Q. Who was that man.—A. General Spencer. 

Q. Is that the only case you know of.—A. That is the only case. 

Q. When did you hear that said by General Spencer.—A. I do not recollect the date. 

Q. Where was it said. Was it after the Judge was shot.—A. Yes; it was after the judge 
was shot. It was said on a steamboat. General Spencer and myself got upon a steamboat 
at Selma to go to Montgomery. I had just returned from Mobile, where I had been to see 
the judge, and I was relating to General Spencer his condition, and he remarked, “ I intend 
to make the judge a present of $1,060.” Whether he ever made the preseut or not I do not 
know. 

By Mr. Semple : 

Q. You say that this settlement and payment, made by you to McCroskey in your 
office, was made in the summer of 1867.—A. I think it was made either in July or August, 
I don’t recollect which ; the receipt bears the date. 

Q. Did you have a marshal’s office in July, 1867.—A. I occupied myself the same office. 
I continued to occupy myself the same office until, I think, the first of November; because 
I had paid my rents up to the first of October or November. 

Q. Do you know C. R. Rice, of Mobile, who is connected with the cotton-pickery of George 
Huggins, Cleveland.—A. No ; I know no man of the name of Rice in Mobile. 

Q. Did you ever authorize him to act as your deputy, special or general.—A. No; I had 
no such man as deputy, special or general. 

Q. You do not know auy such man in Mobile.—A. No ; I do not. 

By Judge BUSTEED: 

Q. One Robert II. Smith, an attorney-at-law of Mobile, Ala., in charges laid by him before 
the Judiciary Committee of the House of Representatives of the United States, charges that, 

while 239 bales of cotton claimed by Thom-were under seizure by you, you feloniously 

appropriated the same to your own use and to the use of Judge Busteed, and substituted 
239 other packages, called bales of cotton, in their place, of inferior quality, and of less 
weight than those seized. Is there any truth in that, or in any part of it. 

Witness. Will the committee let me answer that question? 

Mr. Woodbridge. You can answer the question, yes or no. 

A. I state that that charge is entirely false. 

Q. Were you in court when Robert H. Smith left the court-room, in the case of the habeas 
corpus for Towne, at Mobile.—A. Yes, sir. 

Q. What was the conduct of Smith and his manner on that occasion.—A. I think his 
conduct was highly improper, indecorous, and I think ungentlemanly, and discourteous to 
the court. 

Q. Were you in court when Peter Hamilton had some misunderstanding with the eourt 
upon the motion to set aside the sale of 454 bales by you.—A. I was. 

Q. What was Peter Hamilton’s conduct on that occasion to the court.—A. I thought it 
quite rough, and very improper for a gentleman practicing at the bar. I was very much 
surprised to see it come from Peter Hamilton. 

Q. Do you know Wager Swayne, a colonel in the invalid corps of the army of the United 
States.—A. I do not know anything about the invalid corps. 

Q Do you know Wager Swayne.—A. I have seen him frequently. 

Q. Were you acquainted with him when he was in Montgomery as brevet major general, 
and had charge ot the bureau matters there.—A. For a time General Swayne’s relations and 
mine were vory kind ; we were very intimate. 

Q Were you acquainted with him.—A. Yes. 

Q. During Swayne’s administration of the Freedmen’s Bureau in Alabama, did he turn 
oyer any property to you, and for what purpose.—A. Yes; he turned over property in the 
city ot Montgomery, and I think some in Selma, for the purpose of having it proceeded 
against in the United States district court of the middle district of Alabama. 



385 


Q. By a libel of information.—A. Yes. 

Q Who was present, if anybody, when Josiali Morris paid you the amount of the judg¬ 
ment in the case of The government of the United States vs. Morris & Johnson.—A. Morris 
paid me the money in the case, I think, in his office. No; I think that Mr. Reed and Morris 
perhaps came together to my office and paid the money—a Mr. Reed and Mr. Sorens of the 
Advertiser; which case was which, of the two cases, I do not recollect. 

Q. Do you recollect any person being present at either payment, except Reed.—A. I think 
that Judge Rice was present when the money was paid at Morris’s bank. 

Q. Was Henry C. Semple ever present to your knowledge. —A. I do not think he was. 

I am pretty well satisfied that Judge Rice was present at the bank. 

Q. On either of these occasions did Morris say to you that he thought he had already 
settled this once before.—A. Settled what before? 

Q. The judgment he was then paying, the $30,000.—A. No. 

Q. Did he say anything about having the matter settled before.—A. No. 

Q. And did Mr. Semple reply, “Hardy has nothing to do with that.” Did any such 
occurrence ever take place.—A. No. 

Q. Upon either payment by Morris to you, was Mr. Semple present making a calculation 
of your fees.—A. I have no recollection of Mr. Semple’s ever having anything in the world 
to do with it. 

Q. If he had been present making a calculation of your fees, 'would you be likely to have 
forgotten it.—A. I do not think I would. I have no recollection in the world of Mr. Semple 
being present on either occasion. At one of the payments, I think Mr. Morris and a young 
man—I do not know who he was—and I think Sam. Reed, came into the office with him. 
One payment was made at the bank and the other was made in my office. 

By Mr. Semple : 

Q You say General Swayne turned over property to you in Montgomery and Selma, 
Alabama, for the purpose of it being proceeded against.—A. Yes. 

Q. What property was it that was turned over to you.—A. in Montgomery the rebel hos¬ 
pital known as the Stonewall hospital, and a large number of buildings down about the 
Mobile and Pensacola depot; and then he turned over a lot of houses and tenements up 
near the West Point depot, I think on the old fair grounds. And he gave me a schedule 
and a memorandum of a lot of naval property that was said to be, I think, in a cellar on 
Commerce street, and which was then in charge of a young man by the name of Perry, a 
quartermaster. I know General Swayne sent an orderly down there with a list of the 
property to turn over to me. 

Q. Do you know whether the-title to that property was vested in the Confederate States.— 
A. I know nothing about that. They turned over the property to me, and I took posses¬ 
sion of it as abandoned or rebel property to be proceeded against in the United States court. 

Q. Was it not turned over to you as having been used.—A. Smith, the district attorney, 
was the man who filed the information. 

Q. You do not know whether it was turned over as having been used by the Confederate 
States, or as having been conveyed to the Confederate States.—A. I did not examine into the 
status of the property at all, but all I did was to take charge of it. 

Q. Do you not know that the proceedings against the Stonewall hospital were dismissed 
upon the ground that the property had never been the property of the Confederate States — 
A. 1 do not know whether the proceedings were dismissed or not. 

Q. Did you ever collect the costs in that case.—A. I cannot recollect; there was a large 
number of cases there in which I have not received any costs. 

Q. Was not the case dismissed at the cost of the United States.—A. I cannot tell. I do 
not know that any disposition was made of it while I was in office. 

Q. Are you willing to swear that Mr. Semple was not present when Morris paid you 
$31,000 on this execution.—A. It seems to me if you had been present I should have recol¬ 
lected it. 

Q. What would have made the impression upon you —A. I recollect distinctly in one case 
Judge Rice was present 

Q. That was the case at the bank, but we are now speaking of the case at your office — 
A. My recollection is that there were but four persons in the office, and perhaps the fifth 
came in while the money was being counted. It was about dark, I recollect; and I think 
the persons present were Sam. Reed, a young man—I never knew who he was—whom 
Morris left to count the money with me, and Morris and my clerk there. 

Q. Was not the receipt which you gave to Morris written in the handwriting of the lawyer 
who was present.—A. No, I think I wrote the receipt myself. That is my recollection. 

Q. Are you equally certain of that as you are of the fact that Mr. Semple was not there.— 
A. I do not pretend to say that you were not there, because I cannot say that; but it you 
were there, I have no recollection of it. 

Q. Let me endeavor to refresh your recollection. Do you not remember that when Morris 
came into the office with the person who was the lawyer, who was present, he sent down a 
young man named Fince, who is clerk or book-keeper in his bank, for a package ot money 
to pay you, and that that young man Fince came into the office with the package of money 

25 B 


386 


after you had ascertained the amount that was to be paid.—A. No; my recollection is, I 
went to Reed when I came from Mobile. Reed had taken the responsibility of taking-some 
advertisements out of the paper of the property of Morris. I felt a little outraged about it; I 
went to him for the purpose of knowing why he had done so. Reed said that he would go 
aud get Morris and bring him to me, and that if I would furnish Morris with a statement of 
the case and everything, Morris was ready to pay it. My recollection is that Morris, Reed, 
and this young man came into the office together, about dark; that is one payment of the 
money, or the payment of one case; and 1 think that while this young man, who was a 
clerk of mine, and the young man whom Morris had sent there, were counting the money, 
N. B. Stanwood came in, and he was the only party whom I recollect of as being present 
there; Morris went off directly. That is the best of my recollection of the circumstances. 

Q. Do you not remember telling Morris, when he sent down to his bank for the money to 
pay you, that you wished he would make haste; that you wanted to get off on the boat 
that night to Selma.—A. I do not recollect; I recollect nothing of the kind. 

Q. Do you recollect going off on the boat that night to Selma.—A. I may have gone, 
and I may not; I do not recollect that. 

Q. Have you any very distinct recollection of who was present, or what was done there, 
except the fact that you collected the amount of the execution.—A. I cannot say that I have 
a very distinct recollection of what occurred, and who came in and out of the office; because 
all I was after was the money. 

Friday, February 26, 1869. 

Nathaniel W. Trimble sworn and examined. 

By Mr. Smith : 

Question. Are you clerk of the circuit and'district courts of the United States at Mobile.— 
Answer. I am. 

Q. How long have you been clerk.—A. I was appointed clerk of the district court some 
time in December, 1867; some time after that I was appointed clerk of the circuit court, on 
January 7, 1868. 

Q. What business had you been doing before that.—A. About 18 months previous to that 
I had been in the office of J. Q. Smith ; a portion of the time he was district attorney for the 
middle district of Aiabama, and a portion of the time he was practicing law. I had a 
license myself to practice law, and attended to any business I got of my own But besides 
that, I did a good deal of writing for Smith; I attended to most of his civil business. 

Q. What compensation did he give you for your services. 

(Judge Busteed objected, but waived the objection.) 

A. A portion ot the time I received from Smith $125 per month ; a portion of the time I did 
not receive anything at all. I had my books in his office with me. 

Q. You did little or no practice, did you.—A. I did not do a large practice ; I had a good 
deal ot outside business. I do not mean that I had anything like a large practice, because 
I was a young man and had just come there. 

Q. How much revenue did it all yield you, as near as you can tell.—A. Probably about 
$500 or $600 during the year, and more than that for the 18 months, over and above my 
salary. 

Q. Did you have any property when you were appointed clerk. 

(Judge Busteed objected to the question as of no consequence, but withdrew his objec¬ 
tion. ) 

A. Yes, sir; I bought, at a sale or two there, some property. 

Q. To what amount.—A. I do not know the value of the property. 

Q. What did you give for it.—A. About $40 or $50 for it at the sale. 

Q. An auction sale.—A. Yes. 

Q. Have you got that property yet.—A. I have a deed of it; I have never got possession 
of it. 

Q. \\ hat have been the revenues of your office as clerk.—A. They have been very small 
indeed ; but loi the deposits in bankruptcy I would not, actually, have had enough money 
to have lived on. There was but very little business in court, and in those cases which had 
been decided the marshal returned nearly all the executions, “ No property found,” aud there 
was very little collected at all. 

Q. Did Won all send an amount of deposits, about $115,000, to New York. 

(Judge Busteed objected, but waived the objection.) 

A. I do not know. 

Q. Did you have charge of the deposits in bankruptcy.—A. I did not regard myself as 
having charge of the deposits in bankruptcy. I always, when the deposits in bankruptcy 
were made with me, turned them over to the register in bankruptcy, if they did not exceed 
$50. It they were more than that, a portion I turned over to the marshal in some cases, 
and in some cases I retained $10. I looked upon the $50 deposit as proper to be turned over 
to the register, and I did it in all cases, except, as I said, during Worrall’s absence there were 
some deposits, which are now in the Bank of Mobile, aud which I have not turned over 
because I have had no opportunity; but which I am ready to do as soon as I see him. 


387 

Q. What do they amount to.—A. I do not know ; I think they amount to about $3,000, 
as near as I recollect. 

Q Did you keep an account in the Bauk of Mobile under the style, with N. W. Trimble, 
clerk.—A. Yes. 

Q. W hat did that amount include.—A. It included money that was paid into court upon 
judgments. I do not believe th^re were more than two or three cases of such a character 
during my term, when money was deposited by me in that way. 

Q. Did your account as clerk include all the official moneys you had.—A. My account as 
clerk covered all the official moneys I had, except certain moneys used to defray my 
expenses. 

Q. Why did you not deposit the money you had in your official character in the registry, 
that is, in the bank, to the credit of the court.—A. I looked upon the $.'>() deposit as prop¬ 
erty belonging to the register ; I did not care about being responsible for it myself. I 
deposited the money with the bank as clerk of the court, and I considered it, when so 
deposited, in the registry of the court. 

Q. You had a bauk account with the heading, “The United States district court for the 
southern district of Alabama,” did you not.—A. I do not know whether that was the heading 
of it or not; I have not my bank-book here. I did not expect to come here when I left 
Mobile, where the book is. 

Q. How did you distinguish the moneys. What moneys did you deposit in the name of 
the United States district court for the southern district of Alabama, and what in the name 
of N. W. Trimble, clerk.—A. I do not see any difference betweeu the two. There was a 
payment paid me in favor of the United States against certain parties. I looked upon that 
money as belonging to the government of the United States. I deposited it, as clerk, in the 
Bank of Mobile; I had no account in the name of the United States district court at all; 
that was separate, as I think, but I had an account with N. W. Trimble, clerk. They are in 
effect the same. 

Q. Have you never signed checks which were countersigned by the judge upon the funds 
of the district court.—A. I think I have in about two or three cases—I do not know that I 
have in more; and my impression is that the government had no interest at all in either 
case. There may have been three cases; but I think one of these was a case of a steam¬ 
boat, on which some money was paid to me, and the peualfy was remitted and the money 
returned to the party. 

Q. Here is an account: “ N. W. Trimble, clerk, in account with the Bank of Mobile,” 
leaving a balance to your credit of $707 34, viz : 

Du. N. ff'. Trimble , clerk , in account with Bank of Mobile. Cr. 


± 


Feb. 6, 1868.—To check... 

. $594 00 

Feb. 5, 1868.—By deposit. 

$693 00 

Jan. 3, 1869.—To check... 

. 1,914 00 

.luue 1 1,186H. — By deposit. 

608 34 

Balance. 

. 707 34 

Dec. 16,1868.—By deposit. 

1,914 00 


3,215 34 


3,215 34 



By balance. 

707 34 


Q. What I want you to explain is to what moneys does that account relate.—A. It is very 
easily explained. Mr. Worrall was absent a great deal, an l during hs absence I would 
have the deposit of $50 made in my name, and as soon as he returned 1 would give him a 
check for the amounts in my name. I did not consider it money properly in my custody, nor 
that I ought to deposit it as clerk of the court. If I had made such deposits to my credit 
as clerk of the court, Worrall would have been unable to obtain them, unless the judge and 
myself were both there. # 

Q. Look at the account and tell me what moneys it relates to.—A. The $1,JJ4 is the 
money received in the case of the United States against Cade M. Godbold and .John M. Brown, 
the former formerly United States marshal of the southern district ot Alabama. An execu¬ 
tion was levied against him upon some lands in Tennessee, and they were sold. A man by 
the name of Gager, in Mobile, had an agreement with the Secretary ot the Treasury that he 
was to get ‘20 per cent, of the net proceeds of the sale ot this land, and I think the pro¬ 
ceeds amounted to about this sum. I wrote to the Secretary of the Treasury that Gager 
had demanded of me his 20 per cent, of the money. Gager was very needy, and I thought it, 
before I deposited that money as clerk of the court, I could get an order bom the Secretary 
of the Treasury to pay Gager 20 per cent, of the money, I would do so. 1 wrote to the Sec¬ 
retary on the subject, and I received a letter from him stating that I must not pay Gager his 
account, but that Gager would have to make his application directly to the department. I 
also received instructions to deposit this money with Alfred Elmore. It had been deposited, 
for the few days intervening this correspondence, to my individual credit m the Bank ot Mobile. 
As soon as I saw that the Secretary of the Treasury would notallow me to pay Gager lus 20 



















388 


per cent., I drew the money by check from the bank and deposited it as clerk of the court, 
as all other moneys which I had received for the court were deposited. 

Q. Is that amount still on deposit there.—A. It is still there on deposit. I think it is 
$1,914 that still stands on the registry of the court, as far as I know. 

Q. You have not signed any check to draw it out.—A. Yes, I have. After I wrote to the 
Secretary of the Treasury that I had deposited the money in the Bank of Mobile and did 
not think I was authorized to deposit it with Elmore, I received a letter from the Secretary 
of the Treasury instructing me to send a check to him at Washington for the amount, and 
he would present it to Judge Busteed here for his signature. I was in Montgomery at the 
time I received the letter. I signed the draft as clerk for that amount, (I do not know 
whether it has been received or not,) and made it payable to the order of General Spinner, 
the Treasurer of the United States. 

Q. When did you draw that check.—A. Since this investigation has been progressing. I 
do not recollect the exact time. 

Q. How do you explain the other items of deposit in this account.—A. The $594, I think, 
was the amount received in a steamboat case, where the penalty was about $600 for a cer¬ 
tain thing; and my idea is that the penalty, whatever it was, was remitted, and I gave the 
secretary of the board of trade, I think, a check for the amount of money that had been 
paid into court. That, I think, is the item for $594. 

Q. And the $707 34 is there now, is it.—A. It seems to be there now. 

Q. Did this account of yours as clerk, and your deposits to the credit of the registry, or 
in the name of the United States district court, embrace all the money in anywise belonging 
to the court that you had —A. They embraced all the moneys belonging to the credit of the 
court which I had, except the necessary funds of living that I used. 

Q. These were your fees.—A. Yes. 

Q. You kept an individual account with the bank, did you.—A. I did. 

Q. What did that represent.—A. It lepresented two or three things. Sometimes in Wor- 
rall’s absence, which was frequently for four or five days, with his consent I kept the deposits 
to my individual credit in the bank. When he returned from Mobile I gave him a check 
for the aggregate amount, not paying him the $50 for each case separately. 

Q Was Worrall generally there.—A. I think he was in Mobile a great deal more of his 
time than he was in Montgomery. 

Q. He lives in New York, does he not.—A. He lives in Mobile, I think. He registers his 
name at hotels as residing at Mobile, I think. 

Q. Where does Judge Busteed live.—A.* I suppose he lives in Mobile. When in Ala¬ 
bama he is at Mobile, at Montgomery, and at Huntsville. 

Q. Do you know where his family lives.—A. I think they live in Jamaica, Long Island. 

Q. During the war what were you doing.—A. I was doing a great many different things. 

Q. Were you in the confederate army.—A. I was. 

Q. Have you ever been relieved from your disability by act of Congress.—A. I never have. 
I do not know that I have been laboring under any. 

Q. Have you not taken the oath prescribed by the act of Congress for officials. 

Judge Busteed. What oath. 

Mr. SMITH. The oath known as the iron-clad oath. 

Judge Busteed. Where is it to be found. I do not know any iron-clad oath. There is 
no such oath to be found. I want you should produce the oath itself before you question 
the witness respecting it. 

Q. Have you ever taken the oath of the act of July, 186*2, requiring that, “every person 
elected or appointed to any office of honor or profit under the government of the United 
States, either in the civil, military, or naval departments of the public service, except the 
President of the United States, shall, before entering upon the duties of such office, and 
before being entitled to the salary or emoluments thereof, take and subscribe the following 
oath or affirmation: 

I, A. B., do solemnly swear or affirm that I have never voluntarily borne arms against 
the United States since I have been a citizen thereof; that I have voluntarily given no aid. 
countenance, counsel, or encouragement to persons engaged in armed hostility thereto ; that 
I have neither sought nor accepted, nor attempted to exercise, the functions of any office 
whatever under any authority or pretended authority in hostility to the United States ; that 
I have not yielded a voluntary support to any pretended government, power, or constitution 
within the United States hostile or inimical thereto. And I do further swear or affirm that, 
to the best of my knowledge and ability, I will support and defend the Constitution of the 
United States against all enemies foreign or domestic ; that I will bear true faith and allegi¬ 
ance to the same; that I take this obligation freely, without any mental reservation or pur¬ 
pose of evasion, that I will w r ell and faithfully discharge the duties of the office on which I 
am about to enter. So help me God.” Did you take that oath. 

(Judge Busteed objected to the question. Objection overruled, and question admitted.) 

Q. Have you taken that oath.—A. I would like to make a statement. 

Mr. Smith. Answer the question first, and then you can make your statement, if it is 
necessary. 

A. I took an oath similar to that, which, I think, further stated that “ since I have been 



of age and a citizen of the United States.” I think that was the only difference between the 
two oaths. 

Q. 1 hat you had not borne arms since you became of age. When did you become of age ? 
Now state whether you took that oath, such as it is, just as I have read it to you. —A. The 
oath which I took was, I think, similar to that. I will not swear that it was exactly that 
oath; it was intended to be that one, I think. 

Q. Except that you qualified by saying “since you were 21 years of age.”—A. No, I said, 
“ since I have been of age and a citizen of the United States.” 

Q Were you not born in the United States—A. I was. 

Q. What did you mean by “ since you have been a citizen of the United States.”—A. I 
do not propose to explain what I meant by it. I said I took a similar oath to that, with that 
amendment. 

By Mr. CHURCHfLL: 

Q. Was that amendment stated verbally, or was it inserted in the body of the oath to 
which you subscribed.—A. It was inserted in the body of the oath. 

Q. What did you mean by “since you have been a citizen of the United States,” if you 
are a native of this country.—A. In reply to that, I have a simple statement to make to this 
committee. 

By Mr. Woodbridge: 

• Q. You can answer this, certainly; you mean by this that you took the oath that you had 
not been engaged in or aided the rebellion after you were 21 years, of age. That is what you 
mean, as I understand; is it so.—A. Yes; voluntarily. 

Q. If you mean anything else, state what you do mean.—A. I went to Judge Busteed and 
explained to him my position, and with the amendment I have stated I took the oath. I 
never took an oath to support the confederacy; I never voluntarily did anything for the 
support of the confederacy. I was about 17 years of age. Governor Harris called out some 
State troops to serve in Tennessee, before that State had gone out—in fact, that State voted 
by 69,0(J0 majority against going out. Myself and the majority of the company in which 
I was, which was composed partly of some school-boys, had no idea of going beyond the 
State of Tennessee. We were put into camp and drilled, and one night we were put upon 
the cars and sent to Virginia. No objection was tolerated, if any objection was raised, and 
there was nothing else be to done but to go. At the expiration of that 12 months portions of 
the regiment were very clamorous to go home. There was an order sent from Richmond that 
an election had been ordered of officers and there was no such thing as going home. Por¬ 
tions of a Kentucky regiment undertook to go home; most of them were arrested, and a great 
many, with irons around their limbs, were sent to Libby prison. I never held any office under 
the confederacy, and never took an oath to support it. 

By Mr. Smith : 

Q. How* long were you in the army.—A. I do not know exactly how long. I think I 
entered it in 1861, and went out iu 1863. 

Q. There was no conscription law of the confederate government iu 1861. Did you make 
objection to your transfer from Tennessee to Virginia.—A. I think I made objection, as most 
of the men did. I objected to it verbally. I never prepared any written objections. 

Q. To whom did you make your remonstrances, if to anybody.—A. I made them in the 
presence of the officers and men of the company. 

Q. Was your transfer from Tennessee to Virginia against your wishes—A. Yes, it was. 

Q. I would like to know what you meant by inserting in that oath “since you have been 
a citizen of the United States.”—A. I suppose I must have meant that there was a doubt in 
my mind whether I was a citizen until I was 21 years of age. 

Q. Did you doubt upon that subject.—A. I did 

Q. You were a lawyer, and doubted upon it.—A. No; I was not a lawyer at that time, 
when the transfer took place. 

Q. Not when you became clerk and took the oath. Did you not say you had been a 
practicing lawyer.—A. I did. My impression is that I mentioned the fact at that time that, 
until I was 21 years of age, I doubted whether I was a citizen. 

By Mr. Churchill; 

Q. Was the insertion of this amendment at all upou the idea that you might have been or 
was a citizen of the State of Tennessee, and not of the United States, and that therefore you 
could take an oath of that kind, that since you had been a citizen of the United States you 
had not been guiity of the acts mentioned in the oath —A. No ; I do not think I entertained 
any such idea. I entertained this idea, that while I was in the confederate army I had no 
opportunity, one way or the other, of exercising any option in the matter. 

By Mr. Smith : 

Q. Well, by reading this oath you will discover it relates to the very time that you 
might have borne arms; it relates to an obligation during that very time. Knowing that 
the obligations were upon you contemplated by the oath, why did you, therefore, put iu it 


390 


“since you have been a citizen of the United States,” “since you have been 21 years of 
age.”—A. 1 have just explained. There was a doubt on my mind whether I was a citizen. 
1 certainly was not a citizen with the privilege of exercising my free will. 

Q. You took the oath before Judge Busteed.—A. I took it before Judge Busteed or Mr. 
Worrall. I will state that I had a conversation with Judge Busteed and others, and, from 
the facts laid before them, they thought I could take this oath. I did so, and accepted this 
office. If the idea is here to try him for what I did, and for what he had no concern in, I 
protest against it; but, if I am to be tried, I do not think it should be done here. 

Q. Did Judge Busteed advise you to take the oath with the exception that is in it. —A. I 
do not think he did ; 1 think I suggested it, to him myself. 

Q. He knew of that exception, did he.—A. He did. He was of the opinion, from the 
facts I stated to him, that I could take it without any exception. 

Q. Why did you not leave, if you were not conscripted, and volunteered for a particular 
purpose, when that purpose was completed.—A. If you were in Congress you might not 
know, but if you had been in the army you would have known very well. A man could not 
leave ; you probably are not aware of the pressure which was brought to bear. In the first 
place, if a man quit, he would be shot; that would be a very important reason. In the 
second place, if he was among a party of school-fellows, his self-respect would prevent him 
from leaving. 

Q. Well, that was exactly your motive, was it not.—A. I think it was, probably, a com¬ 
bination of both and several other reasons. 

Q. You had an individual bank account beginning February 5, 1868, and euding January 
7, 1869; during what months of that year was Worrall in Mobile.—A. I cannot say; I 
think he was there from Februarv, 1868, to somewhere in June and that he left some time 
in June, or perhaps in July, 1868. He might not have been in Mobile all the time, but a 
part of the time in other places. 

Q Yes ; but he was in Mobile very generally.—A. I think he was. 

Q. Then he left in July ; when did he return.—A. I do not recollect; I think it was some 
time in November; it might have been in October; I think it was some time in November. 

Q. While Worrall was there you did not deposit the moneys belonging to the registry of 
the court, which you received from bankrupts, in your own name.—A. I did not. I will state 
that sometimes during Won all’s absence 1 would receive a certain number of petitions, the 
fees of which I would deposit in the Bank of Mobile, and while he was there I would per¬ 
haps receive some other petitions ; he would just say, give me a check for the entire amount, 
and have me deposit the balance which 1 had in my hands to my own credit. 

Q. What was generally the amount of these checks—small or large.—A. I think there was 
one for $2,560. 

Q. What was the amount of the deposits generally.—A. I do not know what the deposits 
were. As I received the money I would generally take it right to the bank. 

Q. These deposits, if you had made them at once, would have been small, would they 
not.—A. Sometimes they would. Sometimes a good many petitions would be filed in a day, 
and if I was busy I would not go to the bank at all. Sometimes I kept the money several 
days. 

Q. Will you please to look at this account. I see that from February, 1868, to January 7, 
1869,-you deposited in bank, to your individual account, $24,317 65; where did that money 
come from.—A. Well, sir; a large portion of that money—I think the very largest, nearly 
the most of it—was money received for Worrall. 

Q. ('an you specify, now, what sums were received for Worrall and what were not.—A. 
No ; I will not undertake to do that; but most of this money is money received for Worrall. 
There is a check of $2,500, which I gave Worrall; there is one of $2,250, which I gave 
Worrall; and one of $1,350, which I gave to Worrall; and there is now about $3,500 in 
bank belonging to Worrall. 

Q It the $1,914 drawn on 16th December, 1838, on your individual account in bank, were 
to pay the matter you have before spoken of to the Treasurer of the United States, how does 
it happen that you drew tor the same amount from your different account in the bank in the 
name of yourself, as clerk.—A. I explained that once before, and I will explain it again. 

Mr. CHURCHILL. Is not the same ctieck which is drawn in one of these accounts deposited 
in the other.—A. Yes; the same check. As I said before, when the money was paid over to 
me I wrote to the Secretary ot the Treasury asking him to instruct me if I might pay Gager his 
20 per cent. During the interval which elapsed between the time I wrote to him and received 
his answer I deposited the $1,914 to my individual credit, because I wanted to pay Gager if 
I could, as he was a friend of mine, an old man, and needy. As soon as I received instruc¬ 
tions from the Secretary of the Treasury, I drew the money out of my individual account 
and deposited it immediately to my account as clerk. 

By Mr. Woodbridge : 

Q. Your check was charged to you in your individual account and credited in your account 
as clerk.—A. Yes. 

Q. Please specify which of these checks you paid to Worrall.—A. I can specify some of 
them. I recollect February 27, 1868, one for $2,506 ; May 7, 1868, one for $1,350 ; June 1, 


391 


18G8, one for $2,250; July 7 1868, one for $1,600. I think I paid the last two to Worrall ; 
I am not positive about this $1,100 unless I could look at my checks. Sometimes in the trial 
ot causes parties would come to me and pay me some money in the cause for plaintiffs with- 
out having the execution issued. I did not care to carry their money about in my pocket, 
and 1 did not caie to deposit it to my credit as clerk, because I knew they would be after it 
in a day or two, and I would have had to send my check north to the judge to be counter¬ 
signed by him; therefore I deposited it to my private account and paid it back to them. 
I here were several cases ot that kind where I deposited quite large sums of money in which 
I had no interest in the world. ’ 


Q. Can you tell for whom these sums were deposited.—A. If I had my checks here, I could. 
I did not bring them, as I did not expect to come here. 

. Q How was it that you did not deposit that money in your name as clerk.—A. I have 
just explained that. 

Q. There were three deposit accounts ; one to the United States district court, one to your- 
selt as clerk, and another to yourself individually. 

Witness.- You are mistaken about that. 

Mr. Smith. I have got the accounts here. 

A. I will explain that. A short time after I was appointed clerk Worrall, who had an 
amount with the Bank of Mobile of funds which had been deposited to the credit of the dis¬ 
trict court there, straightened up his accounts and handed me a bank account, which showed 
to his credit $10,000, or about that, the sum that was in the registry of the court before I was 
appointed clerk, and that money is in the registry of the court now. 

t Q- Have you made no deposit in the registry of the court at all.—A. I do not see the dis¬ 
tinction that you draw. When I deposited as clerk I considered it in the registry of the 
court. ^ I do not think I made any deposits to the credit of the United States district court. 

Q. Then the moneys that you deposited that were not deposited in your individual name 
were deposited simply to you as clerk. — A. Yes. 

Q. That did not require the judge’s signature, did it.—A. If I deposited as clerk I depos¬ 
ited in the registry of the court. There was no distinction between them. 

Q. The tact is that here are two accounts, one with the clerk and one with the registry of 
the court.—A. They were both the same, and I regarded them as the account of the registry 
of the court. Worrall may have had his account headed in that way ; it is very probable. 
I do not know. 


Q. Did you continue to take a memorandum of deposits in the bank on the same book 
which Worrall handed you.—A. Before Worrall handed over his book to me I had a book. 
I am not positive now whether I used my new book or whether I used the same book; but 
my impression is that in the deposits of court money I used the same book. If I did not, I 
think 1 had the amount from WorralTs old book transferred to my book. I am not so posi¬ 
tive about that. Worrall handed me a book in which simply the aggregate amount of money 
was credited without any statement of the separate amounts which had been deposited. 

Q. You said just now that the balance was $10,000.—A. I think it was a little over $10,000. 

Mr. SMITH. I see no such amount in the account of the United States district court for 
southern district of Alabama. 

Witness. May-be you will see it in Worrall’s account. 

Q. No. But I am asking whether this balance that was on hand when Worrall quit was 
brought down to your account as clerk.—A. Worrall handed me a book showing that there 
was a balance of so much money in the bank. I either took his book or the balance was 
transferred to my book. But it is still in the registry of the court subject to be drawn out 
now r in the usual manner. 

Q. Do I understand you as asserting that you made no deposits on account of the United 
States district court for the southern district of Alabama, but that all the deposits you made 
were in the name of yourself as clerk and in your individual name.--A. I will not undertake 
to assert how the account may have.been headed in the book that Worrall handed to me; 
but I deposited all the money of the court to my credit as clerk. There was no such thing 
as two separate accounts—an account with the United States district court and one with the 
clerk—so far as I know. 

Q. Did you pay nothing to obtain the office of clerk.—A. I did not pay a cent. 

Q. Did you render no account to Judge Busteed of the proceeds of your office.—A. Not 
a cent. 

Q. Did you pay Worrall anything.—A. I did not; I never paid Worrall a cent. So far 
from paying him money, I borrowed some money from him, and I am in his debt now. 

Q. You never gave anything to anybody to get that office.—A. I never did ; I knew the 
judge very well myself. 

Q. You have never before been clerk of a court.—A. I have been acting clerk of a court 
some time in Nashville, under Judge Triggs. 

Q. How long w r ere you clerk there.—A. About two or three months, in the absence of the 
clerk, I think. 

Q. You say you have never given any present.—A. Yes; I have. 

Q. Where was it.—A. On one occasion, in the city of Montgomery, the judge and myself 
went to White’s bookstore to look at a new law book. While there we were looking at 


392 


some work containing 1 , I think, two or three volumes. The judge spoke of liking it, and 
when he stepped away I told White to put the books up for the judge. 

Q. Have you never given anything except such a description of presents.—A. No ; I have 
never made him presents of value—that is, of any great value. I consider myself in his 
debt, so far as kindness is concerned. 

By Judge Busteed : 

Q. Judge Cuthbert testified to what he said was a false entry made in your minutes as 
clerk, in reference to the Horton trial. Do you know anything of it.—A. I will state, in 
connection with this, that when Judge Cuthbert came back to Mobile he voluntarily came 
up to my office, and, in the presence of several witnesses, told me that he felt very indig¬ 
nant, very sorry that such a despatch had gone through the country; and he said, “ I want 
you distinctly to understand that I did not mean or intend to say, and I never entertained 
the thought, that your intentions had been erroneous, untrue, or anything of that kind, and 
I came up to tell you of that.” 

Q. Who made up that record.—A. The principal part of the record was made by Bailey, 
but I think he did it from a memorandum of mine. 

Q. Did Judge Busteed ever give you any directions as to how the entry of the original 
record should be made. Did he ever give you any directions as to how you should enter 
the pioceedings in trials before him.—A. He never did. I am of the opinion yet that Judge 
Cuthbert is mistaken about this entry. 

By Mr. Churchill : 

Q. Did you solicit your office from Judge Busteed yourself, or your friends for you.—A. 
I never did in person. I had a correspondence with Worrall, clerk, and I had several 
friends who spoke to Judge Busteed about it—among others, J. Q. Smith. During Blake’s 
absence on account of sickness I acted as clerk of the court in Montgomery. I knew the 
Judge very well, and when he came to Mobile I told him I would like to have that office. 

Q. Was it ever agreed or intimated between you and Smith, or between you and Worrall, 
or between you and any other person, that if you should receive this appointment, it would 
be expected, or that it would be proper, that you should make any present, or contribution 
in any form, to Judge Busteed, Smith, or Worrall, or any other person.—A. No ; it never was. 

Q. After you were appointed has it ever been intimated to you by any person that such a 
present or contribution was expected or would be acceptable from you —A. No, except 
this: On one occasion Worrall said to me—it was the time Judge Busteed had been shot 
and was very sick—that he believed certain parties desired to make the judge a present. 
I do not know who they were. I think General Spencer probably was one. And I said I 
thought it was perfectly right—that the judge was on very great expense; and I believe I 
suggested to Worrall that, as the judge was so situated, I would be willing to pay a portion 
of his necessary expenses. Worrall said no ; I must not do it; I was not able to do it; aud 
I never did it. 

Q. Did you hear any such suggestion from the judge.—A. I never heard a word about it 
from the judge in my life. 

Q. Did Worrall intimate that the judge would like to have such a present made.—A. No. 
In fact, I think he told me that the judge had never heard of the suggestion he made to me. 

Q. Can you remember what person it was that he named as having the idea of making 
such a present.—A. I do not remember any particular person now, except General Spencer. 

Q. Do you remember what reason, if any, was mentioned why this person was expected 
to make such a present.—A. He told me the reason was that the judge had been shot down 
there, and was sick from his wound, and that his expenses were very great—much greater 
than his salary. 

Q. Was any other reason suggested in that conversation.—A. There was no other. The 
conversation was very brief. 

Q. While you were clerk you taxed bills of cost, did yo i not, in causes that were brought 
before that court.—A. Yes. 

Q. Were they taxed by yourself alone, or by yourself on consultation with the judge.— 
A. They were taxed by me alone. 

Q. What was the largest amount of any of these bills of cost.—A. I cannot recollect. 
The bills of cost vary very greatly. 

Q. About how much was the largest of these bills. As the clerk is interested pretty 
largely in bills of cost in United States courts you are likely to remember very nearly ; was 
it more or less than $500.—A. I do not think there has been but one case in court where the 
costs amounted to that sum. 

Q. What case was that.—A. A case, I think, in chancery; I do not recollect the parties. 

Did you tax the bill yourself.—A. Yes. 

Q. You were familiar with the costs allowed by the laws of the United States.—A. Yes ; 
I have examined the fee bill in Brightley’s Digest; it is very deficient; it does not describe 
the amount of fees in court except for summons or some, such things; this suit was between 
private individuals, and there was no objection made to the taxing. 

Q. In any bill taxed by you was there any tax laid which in itself, or in its amount, was 
greater than, in your opinion, was authorized by law.—A. I do not know exactly how to 


393 


answer that question; when I made out the bills of cost, myself I made them out as I 
je ie\eu to be collect; sometimes my assistant made out bills of cost; and sometimes the 
party has come and told me—when we were in a very great hurry and had not time to 
make out the bills of cost in simple cases of peremptory notice, or somethin^ of that sort, 
where the costs generally averaged from $10 to $*20—and proposed to pay me $10, or $12, 
or si 4, and I took it and gave him a receipt for the costs. 

. Q- That is not exactly answering my question ; in these cases did you suppose you 

included any item which was not properly allowed by law.—A. No, sir. 

Q. My question is whether, during your action as clerk of the court, there was any 

instance in which, on your knowledge as a lawyer and on your conscience, there was any 

item allowed which in itself or in its amount you considered was other than'the law author¬ 
ized.—A. I do not think there ever was any other costs charged than were authorized by 
law, except in such cases as I have mentioned, in which the amount received was generally 
under rather than over the amount authorized by law. 

Q. Has any officer of the United States in the State of Alabama ever said anything to you 
as to any present which he had made or proposed to make to Judge Busteed.—A. He never 
has. 

Q. Or as to any share of any fees or any receipts of any kind whatever that he was 
intending to pay to the judge —A. No, sir. 

Q. Or that the judge was expecting to receive from him.—A. No; I never heard any such 
thing. 

Q. Do you know either of your own knowledge, or have you ever heard from any other 
person who spoke as of his own knowlege, of any act of Judge Busteed in the State of Ala¬ 
bama which was corrupt in its character.—A. I do not think I ever did ; I have heard gen¬ 
eral reports—whatever other people heard. 

Q. I am not speaking of general rumors; I am speaking of your own knowledge, and 
also of anything which any other person may have named to you as of his own knowledge, 
which, it true, would have shown corruption on the part of the judge. — A. No, sir ; I have 
not. 

Q. Have you ever heard any statement questioning the official character of Judge Busteed 
prior to the publication of the charges which are now under investigation.—A. I heard very 
little of it prior to that time; I do not think I ever heard anything of the kind in Mobile; I 
think 1 did in Montgomery. 

Q. When did you first hear anything of the kind in Montgomery.—A. I cannot exactly 
recollect; I think I heard something of parties trying to get up articles of impeachment 
some time before when General Swayne was there, and I rather think the rumor was that he 
was the man who was at the bottom of it; I believe that was about the first I heard any¬ 
thing of the matter. 

Q. What was the matter which was mentioned then as that upon which articles of impeach¬ 
ment were sought to be obtained.—A. I never heard any special matter stated by any one, 
but simply the general rumor on the street; in fact, I suppose, considering the relations 
between me and the judge, parties w ould not mention the matter particularly to me. 

Q. Did you ever pay the expenses of Judge Busteed in Mobile or elsewhere.—A. I never 
paid anything to the judge but as 1 have paid for a dinner occasionally for him ; but the 
judge has given me a great many more than I have him. 

Q. Is that the whole.—A. Yes. 

Q. Do you know r of any other officers of the court having borne the expenses of Judge 
Busteed.—A. I believe the marshals probably treated him occasionally. 

Q. I do not speak of a trifle of that kind; but do you know of any officer of the court 
having borne his expenses either wdnle in Mobile or on the circuit.—A. I do not. 

Washington, D. C., February 26, 1869. 

James Q. Smith sworn and examined. 

By Mr. Semple : 

Question. When were you appointed district attorney of the northern district of Ala¬ 
bama—Answer. I think it was in May, 1865. 

Q. When was it that you entered upon the discharge of your duties.—A. Immediately 
after that. 

Q. When w r as the court organized.—A. Not until the fall of the confederacy; I com¬ 
menced the discharge of my duties immediately after 1 got to Alabama, probably within a 
month after I got my appointment. 

Q. Do you remember the pendency of a suit in the district court of the United States for 
the middle district of Alabama, of the United States vs. Morris & Johnson, in respect of their 
having taken possession of and disposed of 120 bales of cotton alleged to have been the 
property of the United States.—A. 1 remember the case very well. 

Q. What was the first proceeding commenced against Morris & Johnson.—A. It was a 
suit in the nature of an action of trover for the conversion ot cotton that belonged to the Con¬ 
federate States, and was in one of the warehouses in Montgomery when the surrender took 
place and the city wuis taken possession of by General Wilson. 


394 


Q. Tlie suit was dismissed by you, was it not.—A. Yes. 

Q. Do ypu remember the time that the suit was dismissed ; w r as it about July, 1866.—A. 
I think it was after the May term of 1860 ; the regular term commenced the fourth Monday 
in May, and as soon as the court was over I dismissed the proceeding in the nature of an 
action of trover, and then commenced by libel of information. 

Q. Did you not dismiss it after the adjournment of the court and commence a new action 
before the commencement of another term—in vacation.—A. Yes. 

Q. Then you commenced another proceeding.—A. Yes ; at that time this confiscation law 
was a new law'—there were very little rules established for proceedings under it. 

Q. Was there not a decree rendered in that case in December, 1866, for $’10,000 against 
Morris &- Johnson.—A. I do not know the term of the court; but a judgment was rendered 
against Morris Johnson for about that amount. 

Q. Did the information state that there was an informant —A. No ; I do not think it did ; 
for the reason that there was danger for an informer to make his appearance under the act of 
Congress, and there was nothing in the law' that provided that the name of an informer 
should appear on the record; the law' required that the information should be filed with the 
district attorney. 

Q. Did the information state that there was any informer, wfithout stating the name of the 
informer, or did it not state substantially that the information was filed by the district attorney 
for the United States.—A. The information did state that it was for the United .States. I do 
not think it mentioned an informer. 

Q, I did not ask you the question, dicT it mention the name of the informer, but did it 
mention the fact that there was an informer.—A. No, I think not, because the question arose 
in some case there in reference to inserting the name of the informer, and the court held that 
it wms not necessary under the law to insert the name of the informer, but that it was for the 
district attorney, when the case was disposed of, if in favor of the United States, to show 
W'ho the informer was. 

Mr. Woodbkidge. The question is, did your libel state that there w r as an informer, with¬ 
out giving his name.—A. No; but the name was filed in the district attorney’s office. The 
information is the libel of information. The information furnished to the prosecuting attorney 
is the sworn statement under an act of Congress, and on file in his office. 

Q. Was such a statement filed in his office before you instituted proceedings.—A. It w r as 
to the best of my recollection. 

Q. After the decree in that cause against Morris & Johnson, w r as an order of distribution, 
on a decree directing the distribution of the proceeds of that judgment, made by the court; 
and if so, wdiat was done with it. —A. I will state. The information, as w r as customary, or 
the order of distribution was drawn in blank in the usual form, and signed by the judge ; 
but immediately after it was signed by the judge, the question arose as to the rights of the 
informer, and whether or not he ought to get his portion of the informer’s share. They 
claimed the right of discussing this matter before the court. There was a day fixed; the 
attorneys were notified, and they appeared in the court-room—Judge Chilton in behalf of 
Morris & Johnson, and I appeared in behalf of the informer, and also of the United States, 
and alter argument the court decided that the informer w T as entitled to his portion after the 
decree; but there was a failure to take out an appeal from the supersedeas bond within the 
time prescribed by law, which was 10 days. As soon as the judge of the court decided that, 
the first order of distribution was destroyed or not used. It was in my possession, and the 
judge drew an order in the case himself, and that was the order which was acted on. 
The other was not, because it was done before the examination, and it was not used at all. 
The new one was made after examination and argument by Judge Chilton and myself. 

Q You say an order of distribution was made immediately after the decree was signed by 
the judge.—A. Yes. 

Q. What was done with it.—A. It was in my possession. 

Q. Delivered to you.—A. Yes, 

Q. When was it that the question arose as to whether an order of distribution could be 
made, or whether the informer was entitled to any share? When was it that they claimed a 
right to discuss the matter.—A. As soon as it became evident that an appeal could not be 
taken and a supersedeas bond filed. The law prescribed that within 10 days an apoeal should 
be taken, and a supersedeas bond he filed, and not afterwards. They failed giving the bond 
within the 10 days prescribed by law, and then they were notified that an appeal could not 
be taken anyhow. I think it was Judge Rice who gave the notice. 

Q. The decree was rendered in that cause on the 17th of December, 1866, and the first 
order of distribution was dated the ‘26tli of December, 1866, were they not.—A. I do not 
remember the dates. 

Q. Assuming that to have been the fact, the record of the Supreme Court shows that it was 
the fact.—A. That may be; I cannot assume. 

Q. Well, supposing that to be the fact, would not the 10 days have expired on the 29th 
of December, 1866. if the decree was made on the 17th —A. I know the 10 days had expired, 
because that was the point I raised in the cause. Judge Rice called on me, and stated that 
the practice of taking an appeal was a new one, and that in the hurry of his court business 
he had omitted to take an appeal within the 10 days, and asked me as a favor, because the 


395 


United States would not be injured, that I should waive my objection in behalf of the United 
States, that no appeal had been taken within 10 days ; I was pretty well abused in the cause, 
and he did nothing at all. 

Q. What did you do with the paper which was first signed by the judge.—A. I have it in 
my office. ° 

Q. Did you deliver it to John Hardy.—A. I might have delivered it to John Hardy ; I 
do not think I did ; I think I put it in the file of old papers in the cause as a document rendered 
useless by the issuing of a new one. 

Q. Where was the file of the old papers kept, if you put in your file.—A. It was kept in 
my office; it belonged to the file in connection with the informer’s statement and the bond 
in the cause ; I always kept them in my possession. 

Q. Before any order of distribution was made, did you'notify them that such an order had 
been made.—A. It w r as filed in court. 

Q. With the clerk.—A. 1 do not know. 

Q* What do you mean by filing in court.—A. I think it was handed to the clerk or to the 
marshal; I do not know which. 

Q. Was not that order made in June, 1867.—A. That is my understanding. 

Q. W as General Healy then marshal.—A. I do not know ; I think he was not; I know 
he was not at the time the order of distribution was made; I do not pretend to state the 
precise date, but I say at the time the order of distribution was made General Healy was not 
marshal. 

Q. Here is a copy under the certificate of the clerk, of the second order of distribution ; 
will you take it and examine it.—A. (After examining the paper.) I suppose that is correct. 

Q. It is dated June 4, 1867; you were not district attorney then, were you.—A. No. 

Q. I asked you just now to whom this last order of distribution of June 4, 1867, was 
delivered when it was made.—A. It was delivered to me. 

Q. To whom did you deliver it —A. I kept it in my possession. 

Q. You were not district attorney, then.—A. No. 

Q. You were counsel of the informer.—A. Yes. 

Q. Was not the matter under the consideration of the court then ; whether the informer 
should be entitled to one-half of the fund which had been recovered from Morris & Johnson 
in the name of the United States.—A. That was the object of the inquiry, and that he should 
get it immediately ; there was no question as to his right, but the question was as to whether 
it could be paid to him until an appeal was taken. 

Q. You say that there was no question as to his right.—A. Not a word. 

Q. Was it stated who the informer was.—A. In the course of the trial it came out who the 
informer was; I think some of the counsel asked ; I gave the informer’s name to the court 
in open court. 

Q. The first order of distribution made by the judge, I understand you to say you kept.— 
A. I think I kept it in my possession with the file of old papers; I do not mean the file of 
papers in the cause, but 1 mean the papers which the district attorney keeps of the history of 
the case. 

Q. This second order of distribution declares that “the clerk of this court is hereby 
authorized and directed to pay the said one-half to said E. E. McCroskey or his legally 
authorized attorney, and take his receipt therefor;” why did you not deliver the order to 
the clerk if you were not district attorney.—A. He was not in Montgomery. 

Q. Was there not a deputy there who discharged the duties of clerk in his absence.—A. 
Yes ; I suppose there'was. 

Q. Did you ever show that order to John Hardy, late marshal—the last order of June, 
1867.—A. Certainly I did ; I think he saw it, but I cannot tell about it; he may have heard 
of it; I think I showed it to him. 

Q. You are not satisfied then whether you showed it to him.—A. No, not until he received 
it into his possession as is customary. It was delivered into his possession as his voucher as 
soon as he made payment of the money. The order of distribution first distributed to the 
informer, to the attorney, the marshal, aud the clerk; and if the marshal pays over any money 
he can only do it under this order, because that is his authority for it; he takes the clerk’s 
receipt aud the order aud files them in court until all the payments are made. As soon as my 
share as district attorney was paid, I handed it to Hardy or Blake ; when he got his com¬ 
pensation it was probably filed in court, but not until the matter was disposed of, because 
the marshal must have something to show why he pays the money. 

Q. Is it necessary that the marshal should have the original paper to show whether he 
pays the money.—A. I think so. I do not think he could pay a dollar unless he has the 
signature of the judge. 

Q. You would not think it safe for him yourself to do so.—A. I certainly would not. 

Q. Suppose that a bill of exceptions was taken before that. —A. Yes, sir. 

Q. Supposing an appeal had been taken from that order of distribution and the bond were 
given to supersede it, where would the parties get the order of distribution to put in the 
record. 

(Judge Busteed objected to the question. Objection overruled.) 

Q. Suppose, I say, that the judge signed a bill of exceptions in which he recites the order 
of distribution.—A. I do not know anything about it; I know such an appeal was spoken of. 


'396 


Q. Here is a bill of exceptions over the signature of E. C. V. Blake, clerk of the United 
States district court; the bill of exceptions contains a reference to this order of distribution 
as being a paper in court. Now, if the party had desired an appeal from that order of dis¬ 
tribution, how could he have got it.—A. Ail that he would have to do was to call on me 
for it. 

Q. You were not district attorney at that time.—A. No ; I was acting for Bugby, the dis¬ 
trict attorney, who had just been appointed, who was not familiar with tire duties of the 
ollice, and asked me to assist him, as I did, in these chronic cases. 

Q. Was a distribution made to the informer, McCroskey.—A. Yes. 

Q. By whom was the payment made to him.—A. By Hardy. 

Q. In what was it made.—A. It was made partly in money and partly in paper, which I 
took and agreed to take. In setting up the cause Hardy did not have the money, aud I 
agreed to take some paper he had in his possession. 

Q Did you say Hardy did not have the money.—A. Hardy did not have all the money. 

Q. How much money in actual currency did Hardy pay to McCroskey upon this infor¬ 
mation.—A. Hardy has McCroskey’s receipt for the whole amount of the money. 

Q. The question is how much money was paid to him.—A. He was paid all the amount. 

Q. How much was he paid in money and how much in paper.—A There were two drafts 
of probably $3,000 each. I think he got a draft of $3,000, or something above that, proba¬ 
bly ; I do not know the exact amount together with the cash; the draft was payable in the 
distance, and he agreed to take that, and I agreed to take it for my portion. 

Q. Were the two drafts for $3,185.—A. I should say now that it was for something over 
$300. 

Q. Was any money whatever paid to McCroskey.—A. Yes. 

Q. Did you not retain out of‘the amount which was coming to him $3,000 as a fee for 
services you had rendered to him as informer.—A. In the settlement I retained more than 
that. 

Q. I ask you if you did not retain a fee of $3,000 for aiding him as the informer—A. No. 

Q. Did you retain $500 for Worrall.—A. I did. 

Q. Did you retain $500 for Barney McKinney.—A. I did not. In the second cause Mc¬ 
Croskey would have nothing to do with McKinney. He paid him for his services in the 
first. You asked me if I had not retained $3,000 as a fee from McCroskey. I said no. I 
wish now to explain that my fee was $2,000 in the case. Worrall’s fee was $500; and after 
the matter was finally disposed of McCroskey was so.satisfied at the success of the cause 
that he allowed me $500 more, which made $3,000—$2,000 my regular fee, $500 to Worrall, 
aud afterwards McCroskey allowed me $500 more. 

Q. Was not the amount in money which was paid to McCroskey $2,850.—No; I think not. 

Q. I mean in addition to the $3,185 draft.—A. Put them together and what is the total 
amount. 

Q. The amount would be, draft $3,185, cash $2,860—making $6,045. A.—No ; the entire 
amount paid McCroskey was $6,666. 

Q. Was the money paid in check or in currency.—A. The balance was paid in cash 
besides this $3,000 which I spoke of before. 

Q. You say that Hardy did not have the money, and it was settled by paper.—A. He did 
not have all the money. 

Q. Did Hardy pay the money that was paid.—A. Yes, he did. 

By Mr. Eldridge: 

Q. Did Hardy pass it from his own hand to McCroskey.—A. I do not know whether he 
passed it to McCroskey or me; he paid it from his own resources. I do not remember now 
whether McCroskey got the money or Whether I got it; it is probable I got it and took it 
into the office to make the settlement with McCroskey; it is probable, for reasons which I 
will explain. But that Hardy supposed he was paying it to McCroskey there is no doubt, 
aud McCroskey gave him the receipt. 

By Mr. Semple : 

Q. How much did you retain altogether for fees for Worrall and for other persons.—A. The 
only other person was myself; I retained $500 for Worrall. 

Q. Did you retain anything besides what you obtained for fees.—A. O, yes : a good deal. 

Q* What was it.—A. I will tell you. There were some private arrangements between 
McCroskey and another gentleman iu Montgomery by the name of Weaver that he was to 
have a certain interest iu the proceeds of the informer’s share, Weaver advancing him the 
money to pay the expenses of witnesses, which was very large, during the prosecution, and 
I loaned Weaver $5,500, and Weaver assigned me his interest to pay up a portion of this 
money, of which I have never got the balance; his interest in McCroskey’s matter satisfied 
a part of my debt; Weaver’s portion was $2,849 15; that was deducted out of it, that was 
one-fifth of the informer’s share; the fee. I said before paid Worrall was $500, and McCroskey 
had borrowed from Weaver something like $1,700 05, which he also assigned to me to pay 
up this $5,000 which I have referred to, that was deducted: there were $525 deducted for 
advances made by me to pay his board when he was in Montgomery prosecuting the case, and 
to pay the witnesses who would not come there unless they were compensated^ 


397 


Q- ^ something deducted for the costs of the court.—A. No ; they were always paid 

out of the proceeds of the suit, whatever they mio-ht be. 

Q. Were not the witnesses paid out of the proceeds of the suit,—A. Yes; but we were 
speaking of witnesses in the former trial which was dismissed, and the informer had to pay 
all the expenses of this and that trial he prosecuted himself, with McKinney as counsel; anil 
the costs in that trial, I think, must have been some $1,500; he borrowed from Hardy, the 
marshal, from myself, and others, to carry on the proceeding. 

Q. Was McCroskey connected in any manner with that former suit which you have spoken 
of-—A. Yes ; he was the regular informer in the cause. 

Q. In the action of trover.—A. Yes; so far as I know. 

Q. Had he tiled any affidavit with you.—A. Yes. 

Q. Before the institution of the action of trover. — A. Yes. 

Q. Have you got that now. —A. No. 

Q. W hat did you do with it.—A. I expect it is among the papers in the cause ; I should 
not be surprised if it was in the papers in my office. 

v By Mr. Eldkidge : 

Q. You say you should not be surprised ; what do you mean? is it a fact that it is there, 
or have you any recollection on the subject.—A. I have no recollection whatever on the subject. 

By Mr. Semple : 

Q. Have you any recollection that he made an affidavit before the institution of the action 
oftrovo'.—A. I have. 

Q. Do you remember when the action of trover was brought.—A. I think it was one of 
the first suits brought before the court, probably early in 1865. Weaver, as I said before, 
was a man who knew more about the transaction than McCroskey, but he was afraid to have 
his name connected with it—absolutely in dread. 

Q. Where did this money come from, out of which you retained the amount you have speci¬ 
fied.—A. It came from Hardy. 

Q. In money.—A. In money and this paper that I have spoken of. 

Q. Do you know what this acceptance was given for by Walsh, Smith & Co.—A. I do 
not know. . 

Q. Did you ever have a note of Walsh, Smith & Co. for $16,380.—A. I had a diaft, but 
I do not think it was for that amount; it was for $0,000 or $10,000. 

Q. Might it not have been for $16,380, with a payment upon it of $5,000 when it was 
delivered to you.—A. No: I think not; I think the draft was for $11,000 on Walsh, Smith 
& Co. 

Q. Well, then, with $5,000 paid upon it, that would have made $16,000, and had not $5,000 
been paid upon it before you received it.—A. No. 

Q. I ask you if you ever had a note in your possession of Walsh, Smith & Co. for about 
$16,380.—A. I do not think I ever did. • 

Q. And you never settled any such notes with Robert W. Smith or with Walsh, Smith & 
Co.—A. I settled a note, but as to the amount I cannot state. 

Q. Do you say that the original amount of the note was not $16,380.—A. My impression 
is that the original amount was not. $16,380; I do not think it was, for the reason that I got 
some money and drafts for the balance which they could not pay at the time. 

Q. Did you have that to collect for John Hardy.—A. Yes; I was going to Mobile, and 
he requested me to take the note and collect it for him. 

Q. Were you authorized to take anything but money —A. No. 

Q. But you did take a draft payable at a future day ; did you cash this draft yourself which 
was given to John Hardy.—A. Yes ; I accounted for the drafts in the settlement; they could 
not pay the money; they did not have it, and they did not want to pay the amount which 
they did pay; money was very scarce in Mobile at that time. 

Q. Do you know what the note or the paper was for which you had on Walsh, Smith & 
Co.—A. i do not. 

Q. Was it payable to John Hardy, as United States marshal.—A. I do not know whether 
it was payable to him as marshal; it was payable to him. 

Q. 1 will endeavor to refresh your recollection. I have here a note— 

“ 16.370. On demand we jointly and severally promise to pay John Hardy, United States 
marshal, for value received, $16,370. 

“ROBERT W. SMITH. 

“CHARLES WALSH.” 

Endorsed on the back : “Paid on within, $5,000. June 12, 1867. 

“JOHN HARDY.” 

Afterwards endorsed : “ Pay to James Q. Smith, bearer. 

“JOHN HARDY, United States Marshal .” 

That is, $10,000 was paid on the note.—A. No ; $5,000 was paid on the note. 

Q. This would leave about $11,000 due on the note.—A. That is my recollection, that the 
note was about $11,000. * 


398 


By Mr. Eldridge: - 

Q. Do you recollect that the note was for $16,000 with $5,0C0 endorsed.—A. No; I do not 
recollect that that was the amount; my recollection is that the note was for about $11,000. 

Q. There has been read to you what purports to be a note with two endorsements upon 
it; one, “Paid on the within, $5,000, June 12, 1807, John Hardy,” and then, ‘‘Pay the 
balance to James Q. Smith, bearer;” that would only leave $11,000 due on the note at the 
time you had it in your possession.—A. O, yes ; there was only about that amount due when 
I had it in my possession. I do not know what John Hardy had collected on it before. 

Q. Did Hardy tell you what it was he had taken a note for—A. I do not think he did. 

Q. How was it that you came to take these two acceptances of Walsh, Smith & Co. for 
something upwards of $3,000 each in settling that account with Walsh and Smith.—A. Sim¬ 
ply because Hardy did not have any money, and I agreed to take them. 

Q. One of them was taken payable to McCroskey, was‘it not.—A. Yes. 

Q. Was the settlement with Walsh, Smith & Co. made by you before you settled with 
McCroskey and took his receipt.—A. Yes; it was. 

Q. Before ascertaining the amount which was to be apportioned to McCroskey, was there 
not a deduction made for attorney’s fees in the prosecution of the suit in the name of the 
United States from the total amount collected, $J1,689 55.—A.- The first thing to be done 
with the mpney after it was recovered upon the judgment was the payment of the costs and 
expenses of the prosecution, which reduced the amount of the judgment to a net of $28,635 50. 

Q. Now, what portion of that balance, between $28,000 and $31,000, did you get as the 
attorney of the United States.—A. I think it was five per cent. 

Q. How much would that amount to.—A. That would amount upon that total of judg¬ 
ment to $1,532 50. I only state that as my calculation upon the matter now, and with no 
actual recollection of it. 

Q. Was that amount fixed by regulation or rule.—A. No ; there was no rule ; every case 
stood on its own bottom. 

Q. Why did you require five per cent, for your fee.—A. I think that, was probably the 
amount in this particular case; in some cases, where the amount of judgment was very 
small, I was allowed as high as 20 per cent.; in large cases sometimes the allowance was 
two and a half per cent., and as low as one per cent.; it depended upon the case and the 
trouble. • 

Q. Who assessed this amount.—A. The judge, in each case. 

By Mr. Semple : 

Q. When did the judge fix the allowance which you received in this case.—A. In the 
order of distribution. 

Q. In the order of distribution under which you paid McCroskey.—A. Yes; in the order 
under which McCroskey was paid. 

Q. Now, here is the order of distribution under which McCroskey was paid June 4, 1867, 
and it does not say a word about the fees of the district attorney, clerk, or any other fees.— 
A. It is not the order of distribution in the case; it is not an order of distribution at all. 
You see, at once, after ascertaining the amount of costs which were to be deducted, then it 
required a further order of the judge to divide the money among the various parties who 
were entitled to it under the act of Congress which provided for its distribution ; the paper 
you have is not the style, nor the shape, nor the language of an order of distribution. 

Q. Look at the order of distribution, page 32 and 33 of Blake’s deposition, set out in the 
transcript certified by him as clerk of the court, and say whether that is the order under which 
McCroskey was settled with. Did you have any order of distribution other than this.— 
A. Yes ; I had the order under which the distribution was made. 

Q. Where is that now.—A. The last I saw of it it was handed to Hardy before the set¬ 
tlement of this case. 

Q. And Hardy was not the marshal at the time of the settlement of the case, was he, after 
June, 1867.— A. Hardy was not the marshal at the time the money was paid, but he was 
acting marshal, attending to his old business as marshal. 

Q. Do you know what had become of the $31,689 55 which had been collected from Mor¬ 
ris, or what disposition the marshal had made of it after its collection.—A. I do not. 

Q. Did you ever hear him say that he had deposited it in the First National Bank of Selma 
before its failure.—A. No; he told me he had deposited various amounts there ; he showed 
me his papers ; I introduced the motion afterwards in court. 

Q. Did Hardy settle with you, immediately, the amounts which were retained by you on the 
settlement with McCroskey.—A. Yes; at the time of making that settlement. 

Q. In that settlement did you not retain the other acceptance of Walsh, Smith & Co. 
for about $3,000.—A. Yes; for my portion of the money that 1 have just stated I had 
advanced to Weaver, and for which I had taken a general receipt. 

Q. Taken a receipt as a portion of the money.—A. Taken it as money—as if he had just 
counted out the cash ; I agreed to take it as money; McCroskey agreed that it should be 
taken as money, and Hardy agreed to pay it as money; that was the manner in which the 
settlement was made as to that pait which was not made in money. 


» 


399 


Q. Have you ever made any return to the United States of the allowance of $1,500 which 
you received in that matter as a fee—the allowance of five per cent.—A. Yes. 

Q. W hen did you make it. A. I made reports of all my receipts, not specifying', but in 
the aggregate; it is not required of the district attorney to specify the cases to all. 

Q. You embraced that in your return.—A. Yes. 

Q. In what return did you embrace it. You made a return up to the 22d of April, the 
date of the expiration of your office.—A. No, I did not; I did not make the return until the 
end of the six months; I think the return is dated June 27, 1867. 

Q, Were the fees assigned to you as district attorney in that suit embraced in the return 
’ now shown you from the 1st of January, 1867, to the 22d of April, 1867, which return is 
dated the 27th of June, 1867.—A. That paper only goes to the date of* my removal. 

Q. Is the sum which you received not embraced in any returns made by you to the gov¬ 
ernment.—A. No; it is not. 

Q. Why is it not.—A. For the reason that in making returns you make a statement of 
what you are entitled to receive, of what you have received, and what you have not received. 

Q. When was it that you made a settlement with McCroskey.—A. It was made in June 
of that year. 

Q. Before the 27th of June.—A. I do not know. 

Q. Have you any paper about you from which you can determine when it was made.—A. 

I have just been looking over my papers; there is no memorandum there of it. 

By Mr. Wood n ridge : 

Q. Should not that settlement be returned to the Treasury Department in Washington.— 
A. Yes, if I had not reported it before. The report states what we are entitled to receive, 
but we do not receive it until afterwards, and sometimes we never get the mouey at all that 
we have put down as being entitled to, and sometimes we do ; we give the best idea of it we 
can at the time. 

By Mr. Semple : 

Q. This purports to be a return only for the period between the 1st of January, 1867, and 
the 22d of April, 1867.—A. Yes. 

Q. Could it have been embraced in any previous return.—A. Yes, certainly ; because this 
cause was decided long before, and the only thing which continued it was the complication 
which arose. 

Q. I understood you to say that the order directing what fee you were to receive in this 
cause was not made until after the 4th of June, 1867 —A. It was not made until after the 
date of the paper which you have shown, and which is signed by Blake and certified as the 
judge’s order; it was not an order, but it was his decision, his decree; the order of distribu¬ 
tion was made probably a few days after that. 

Q. What you call the order of distribution was what settled what your fees should be.— 
A. Yes. 

Q. Your fee could not have been returned until it was settled.—A. Yes; but I told you 
that the judge made another order. 

Q. Did you return that other order as the valid order as to fees.—A. Certainly; the lan¬ 
guage of the two orders was the same, excepting dates, but the old order was not used 
because this question of distribution was raised. 

By Mr. Eldridge: 

Q. You say the language of the two orders was the same.—A. I think so. 

Q. Did not one relate to a transaction that was to take place in fnturo , and the other to a 
transaction which had already taken place.—A. They both related to an act in futuro when 
they were made. I will explain: The first order was made immediately after the case was 
decided, and that related to the future, to the payment of the different persons entitled under 
the order; but in consequence of the difficulty which arose as to the right of the informer to 
receive his money at all, there was a trial of the matter and an investigation before the court, 
and it was held that the informer was entitled to his portion, and a new order was made 
dating from that time, and I suppose there is not probably a particle of difference in the two 
orders, excepting the date and this—that one was in my handwriting and the other is in the 
handwriting of Judge Busteed; I think he drew the last order himself. 

By Mr. Semple: 

Q. Did I understand you to say that this $1,500 and upwards was embraced in some pre¬ 
vious return.—A. Yes ; the return was dated the 27th of June, which includes the time from 
the 1st of January to April 22, 1867 ; I have no recollection on the subject more than as I 
tell you. Frequently, when I earned a fee, that was included in the report, although the 
money may not have been received for more than three months afterwards. 

Q. It was required that a fee earned should be stated in your return, was it not.—A. You 
are wrong ; as I told you, the returns of the district attorney never specified the costs in any 
particular case. 

Q. But I mean, did it embrace them. Did your returns embrace, in the aggregate, tees 
which you had earned and had not received.—A. \es, it did embiace them; the distiict 


400 


attorney is not required to state the case in which he received the tees, but the aggregate 
amount. 

Q. But the amount—would it be embraced in your return if it had not been earned. 

A. Yes. 

Q. When did you consider it earned.—A. I considered it earned when the case was dis¬ 
posed of in court. 

Q. When was it disposed of.—A. It was disposed of when it was tried. 

Q. If it was tried in the fall term of 1866, was it disposed ot.—A. It was disposed ot 
when a judgment and a decree were rendered. 

Q. If the order settling the amount of your fees was not made by the judge until some 
time after the rendition of the decree as against the defendants, how would it have been 
possible for you to have made your returns to the treasury immediately after the rendition 
of the decree.—A. I tell you there were two orders. 

Q. I understand 3 ’ou to say that the order of 29th December, 1866, (supposing one to 
have been made at that date,) was the order under which you received your fees —A. \es. 

Q. And you regarded it, then, as a valid paper.—A. For that purpose. 

Q. And you never deposited it with the clerk—the order of the 29th December, 1866. 

A. Certainly not, for the reason that the marshal was authorized to pay the money to the 
person who was entitled to it—sometimes the clerk and sometimes the marshal. If the 
marshal paid me, as district attorney, $500 or $ 1,000 as my fee in the case, I should hand 
him the order of distribution, because that was his authority for paying it. 

Q. Why should he not make that a record in the court and take a certified copy.—A. 
Because it has to go through the hands of the marshal; because he himself has to pay the 
money. 

Q. Why is it not made a record before.—A. Simply because the matter is not disposed of 
between the officers of the court. 

Q. Why does not the marshal take a decree disposing of the rights of the parties then.— 
A. It is simply the practice of the court. 

Q. You mean your practice.—A. I mean the practice there and in other United States 
courts. 

Q. You say the courts have allowed either the marshal or the clerk to pay the money to 
the informer. Does not that depend upon the terms of the order of distribution.—A. I do 
not think it makes any difference, provided they agree among themselves. 

Q. If they agree among themselves that is not acting under the order of the court.—A. 
Undoubtedly it is, provided the order of the court is carried out. 

Q. If the order was to the clerk to pay the money and take a receipt, would the marshal 
have had any right to the custody of the paper for the reason you have given.—A. If the 
order was directed to the clerk and the clerk paid the money, the custody of the paper would 
be his; but Blake was absent perhaps half his time, and in the absence of any officer 
another may perform his duties. When Hardy was absent Blake paid the money for Hardy,' 
and when Blake was absent Hardy transacted the business for him. The only question 
that could arise was between these two officers. If they agree, it is nobody’s business which 
does it, as long as the order is complied with. 

Q. Have you any reason to believe that the money for which McCroskey was satisfied 
was derived from other funds of the United States in the marshal’s hands.—A. No, sir. 

Q. Did you return, in your reports to the Secretary, all the emoluments of your office—all 
the fees actually received or earned by you during the periods covered by the time for which 
the reports were made.—A. Certainly I did; I made regular reports of them, including the 
receipts as provided by law, and the earnings as well as the receipts. 

Q. In these returns did you embrace the costs which were awarded to you by the order 
or rule of the judge and the libels of information filed against persons who paid their costs 
and were dismissed upon the payment of them and upon producing their pardons.—A. Yes. 

Q. What was the proportion of the costs received from each of these persons that was 
awarded to you by the rule of the judge.—A. I cannot tell you that, because the order was 
changed once or twice duriug my administration. 

Q. Was it not at one time one-half of the costs.—A. It was never one-half, I think. 

Q. Was it as much as one-thiid of the costs.—A. Ido not know; I cannot state that, 
because changes were made in the order fixing the amount. 

Q. How many of these cases were there, and what were you entitled to demand as the 
costs ju those cases.—A. The amount of costs, as I have said, varied with the different cases. 

Q. Were you not entitled to demand, as costs in each of these cases against persons who 
were discharged upon the production of their pardon and the payment of the costs, $200 in 
each case.—A. No ; I settled the costs for the officers of the court—for the clerk and mar¬ 
shal—not for myself. 

Q. Were you uotentitled to demand, as the fees of the marshal, clerk, and district attorney, 
$ 200 .—A. Yes, where the property amounted to $20,000 or upwards. 

Q. These were the only cases, were they not.—A. There was a large number of other cases. 

Q. In how many ot the cases did you actually make settlement with the parties and 
receive as much or more than $200.—A. I have no recollection . 1 

Q. Was it as many as 400.—A. No ; there is not as many as 400 on the docket. 


401 


Q. \\ as it as many as 350 —A. On refiectiou there may have been 400 ; I do not think 
there was anything above that number on that class of cases. 

Q. Were there not a number of other cases in which you also received large fees, where 
the property was confiscated and condemned to the United States.—A. I received a portion 
of the fees in every case where there was anything made out of it. 

Q. Were there not some cases in which you received as much as $1,500, other than that 
which was referred to in your examination a short time since.—A. I think there was one 
other case, probably, of the same amount; it was probably another case against the same 
parties. 

Q. Do you remember the pendency of a case of the United States against certain cotton 
alleged to have been the property of Peter D. Marstou, then deceased.—A. Yes. 

Q. Was not the case settled and dismissed by your order.—A. I do not now recollect the 
particular disposition of this case. You just asked me as to the number of confiscation 
cases on the docket, and the amount of fees I have probably received. The usual course 
was to take a judgment, where the person pleaded pardon, for $200, where the amount of 
the property was $20,000 or upwards. I have often in one day taken 20 or 30 judgments 
and received not one dollar. In the marshal’s office at Montgomery you can now find piles 
of executions issued for these costs where there is not one dollar returned, and all my ser¬ 
vices went tor nothing. Lots of cases were dismissed that were against Union men. When 
the evidence showed me that they were in favor of the government of the United States 
during the rebellion, they were dismissed without a dollar costs. Many a time, when a 
judgment has been taken for costs, the costs have been remitted because they showed that 
they were Union men; and there were a great many instances where the property would 
not amount to $20,000, although they swore to that amount to get the President’s pardon; 
afterwards, when they made application to the courts, they proved that they were worth only 
$7,000, or $5,000; and in many cases not a dollar of property was found. Thus, while it 
would appear in court thfit a large amount of business was doing, when it came to the col¬ 
lection of the costs there was nothing left. 

By Mr. Eldridge : 

Q. What number of cases do you think there were in the court at Montgomery in which 
$200 costs were realized.—A. I cannot tell; I have no recollection about it; I could not 
give an approximate estimate with any kind of certainty. 

Q. Have you preserved a record of the cases in which you did receive fees, and what those 
fees were ; and have you that memorandum now.—A. No. 

Q. Is there nothing on the records of the court to show what amount of fees has been 
received.—A. Not that I know of; there is no law requiring it. 

By Mr. Semple : 

Q. Have you kept any memorandum of the fees received by you as district attorney, and 
the sources from which they were received, so that the correctness of the returns made by 
you could be compared with the memorandum.—A. I kept a memorandum during the time 
I was in the receipt of fees of the office. 

Q. Have you that memorandum now.—A. It is not with me. 

Q. What have you done with it.—A. It might be among the papers in my office. 

Q. Is it there or not.—A. I cannot tell. 

Q. Then you do not know where it is.—A. As soon as the office of district attorney was 
cfisposed of I tore up a great many papers of my office, I cannot tell what papers I destroyed 
and what I did not; I moved into an entirely new office, and I destroyed a great many 
papers. 

Q. Do you know whether you destroyed that memorandum.—A. I think I have no leeol- 
lection of it. 

By Mr. Eldrtdge: 

Q. You say you think you have no recollection of it; that is diluting the answer very 
much; I wish you to answer the question so that we can understand what you mean. 
Have you that memorandum now.—A. I cannot answer it; 1 have no recollection that I 
have it in my possession now; I may have destroyed this paper and may now have no 
memorandum in the office. 

By Mr. Semple : 

q. Did you turn it over to your successor in office, Mr. Bugbee.—A. I did not. 

q. Is there anything in the records of these libel cases, where the parties were discharged 
upon the pleading of °their pardons and the payment of the costs, to show what the amount 
of costs was that was paid by each one.—A. Yes. 

O. Does the judgment specify.—A. No. 

Q. How will the amount of costs then be ascertained.—A. The judge s order would show. 

q. r fhe judge’s order in each case.—A. No; but the general order, the order as to the 
proportion of fees which the attorney, marshal, and clerk are entitled to get. 

Q. Was that order tiled with the clerk.—A. It is recorded on*the books Gt the court, I 

26 B 


402 


think, and is open to the inspection of any one; it is in possession of the clerk of the court 
and is on the records of the court as a regular record. 

Q. The order specifics the proportion which the several officers should receive.—A. \es. 

Q. It did not specify the amount which should be received for costs in each case.—A. No; 
it specifies the general proportion. 

Q. It merely specifies that a certain percentage upon the amount of property shall be 
demanded as costs.—A. Yes ; provided that the property is of a certain amount; tor $20,000 
it is one per cent., and the amount in excess of $20,000 to $30,000 is one-half of one per 
cent., and in excess of $30,000 it is one-quarter of one per cent. 

Q. Then there is nothing on the records of the court to show what amount was actually 
collected from each party who paid costs.—A. I do not think there is, except the memoran¬ 
dum kept by each officer for himself; if the clerk collects the costs he would pay to the mar¬ 
shal and the district attorney, and either officer collecting would pay to the other two. 

Q. But none of these memoranda are on the records of the court as public papers, open for 
the inspection of any one.—A. No. 

Q. They are, I understand you, then, private papers.—A. They are public so far as an}’’ 
of the officers are concerned who are entitled to costs, and as to those parties who have to 
pay them. 

Q. Is the amount entered at all as a judgment in the court.—A. Yes ; in a great 
many cases; in some cases the costs are $50, in some $25, and in some $200; there were 
lots of cases where there was no judgment rendered when a pardon was plead and the party 
was relieved upon payment of the costs incurred. 

Q. Was that a gross sum, or itemized, for which the judgment was rendered.—A. It was 
a gross sum under this order which lam now speaking of; the order prescribed the amount 
which the officers of the court should have in certain causes ; it was understood and 
announced to the bar and to all persons in court there was no judgment at all except for 
costs. • 

Q. You stated, a moment ago, that there were lots of judgments for $25, $50, and $200 ; I 
ask you if the judgment then was for a gross sum, or if it was made up of items as a bill of 
costs.—A. It was a gross sum. 

Q. Now, does the judgment actually specify in some causes that $25 should be collected, 
in some $50 should be collected, and in some $200 should be collected—A. Yes. 

Q. And the judgment is so entered and the parties are adjudged to be so indebted.—A. 
Yes; by agreement a greater part of the time with the counsel on the other side; the judg¬ 
ment, when entered, is for a gross sum, and the officers divide it between themselves in pro¬ 
portion to the amount agreed upon. 

Q. When upon libels being filed there was a plea of pardon, and this plea was admitted, 
was there an 3 T proceedings in the cause to ascertain the amount of the property owned by the 
defendant.—A. No; unless at the instance of the defendant. If he plead a pardon and a 
judgment was rendered for costs, it was to be taken for granted that he came under the 
amnesty proclamation of the President, for persons whose property was not over $20,000, 
unless he now showed that there had been a mistake made, which was the fact in a great 
many cases; these affidavits were handed to me, as district attorney, to form my estimates 
of what the party ought to pay. 

Q. So that there is nothing in the records of the court to show what the costs were, except 
the judgment for costs.—A. No. 

Q. I asked you, some time ago, if you remembered the cause of the United States Is. 
Marston in respect of certain cotton alleged to have been forfeited to the United States—the 
property of Marston.—A. I remember it. 

Q. What disposition was made of that cause.—A. The libel of information was entered 
against it and the property was seized, or some portion of it, on its way to a warehouse in 
Montgomery, and it was there for some time in possession of the marshal; the attorney for 
the heirs of Marston .(for they were minors) made representation, by affidavit and otherwise, 
that this property was not the property that was intended to be seized, that the property that 
was really libelled as belonging to the confederate government had been shipped some time 
before that, and that this was another lot of cotton, and he contended that the libel could not 
be sustained against the quantity of cotton mentioned, and by agreement of the counsel in 
the cause, Malcolm Graham, I think, a judgment was rendered against a specified number 
of bales in favor of the United States; that is the history of the cause. 

Q. And the proceedings against the balance were dismissed. Were there not about 200 
bales of cotton seized.—A. I think that there were 100 bales of cotton mentioned in the libel. 

Q. Was the marshal ordered to release that part which by agreement with the counsel was 
to be released.—A. Yes. 

Q. Was not the cotton in the cars on its way to Mobile when it was seized.—A. I do not 
know. 

Q. You mentioned in one ot your answers that it was in a warehouse in Montgomery or 
going towards the warehouse.—A. That was my understanding, that it was on its way to a 
warehouse ; whether it was on the cars I do not know. 

Q. Was the court then in session at Montgomery.—^. I do not remember. 



403 


any 0rde , r of ,‘ h v e j .“ a ,e* that »* sh0llU1 b« released.—A. When the court 
assembled there was an order of the judge. 

Q. Was there any order of the judge at the time.—A. There was not. 

How then was it released.—A. It was released on my order; and I found out after* 
wards that I had made a good thing, because I do not think that the libel could have been 
sustained against a bale ot it. 

Q. A certain portion of it was condemned which you think could not have been condemned 
on a tan tnal, and that is what you mean when you say that you made a good thing of it 
for the government, is it.-A. The property was seized and there was no trial concerning it; 
it might be that m the course of trial, it a trial had taken place, that the libel could”not 
have beeu sustained; ot course I would make an effort to condemn the cotton if it went on 
to ti'i&i. 

Q. Whether in your judgment it was liable to condemnation or not.—A. No; but in that 
cause I have the sworn statement of parties as to the liability of the cotton, but upon exam¬ 
ination of the affidavits I ascertained that they were not certain that they had got this 
specific cotton which was liable to be seized ; although 100 bales were justly liable, vet tbev 
were not certain that this was the particular lot of cotton. 

Q. Do you remember the cause of the United States vs. 10 bales of cotton, A. M. Ken¬ 
drick, claimant, in which Mr. George Mason assisted you, or was acting for you.—A. No 
sir; there was a case of 40 bales. 

Q. Refresh your recollection by looking at this memorandum in your handwriting.—A. 
No ; I have no recollection about that case. 

Q- -P 0 J ou remember the order that the case should be dismissed.—A. I have no recollec¬ 
tion ot it whatever ; it was a very common occurrence (almost every day in that wild state 
o! society over there) that I got information that cotton was liable to seizure, and afterwards 
found out that it was a mistake, and ot course as soon as I found the mistake I dismissed 
the case immediately. 

Q. Did you not, when you dismissed such cases as those you have just referred to, require 
that they should consent to the condemnation ot such part of the cotton as would pay your 
fees and the costs.—A. No, sir. 

Q. Did }-ou never do it.*—A. O, yes. 

Q. Did you not generally do it.—A. I have in some instances. 

Q. I ask you to answer the question; did you not generally do it.—A. No. 

Q. You did it in the Marston case.—A. No; that was a case of several bales, against 
which judgment was rendered in favor of the United States, not in my favor. 

Q. That is the very question I asked. 


By Mr. Eldridge : 

Q. I understand you that you do not remember about this case of Marston—40 bales.— 
A. There were two causes of 10 bales. 

Q. The counsel refers to the Marston case in which there was a judgment taken for the 
United States against a certain number of bales; in that case did you not require that the 
parties should consent to the condemnation of a certain portion of the cotton for the pay¬ 
ment of the costs.—A. I certainly did. 


By Mr. Semple : 

Q. Did you not usually require it where, upon complaints presented to you, you had taken 
steps for the seizure or condemnation of cotton.—A. Not as a general rule. 

Q. Did you do it in the case of the United States vs. A. M. Kendricks.—A. I have no 
recollection of the case ; 1 remember Mr. Mason was the informer in several cases from that 
part of the State: he was a lawyer, and his information, I ascertained afterwards, was not 
of the most reliable character. 

Q. But in the Marston cause, to which you have referred, a judgment was taken for the 
United States; was there anything ever paid to the United States from the claimants.—A. 

cannot tell you ; I had nothing to do with the first of the causes as attorney. 

Q. Do you know whether anything was ever paid to the United States from any of these 
cases.—A. I might state what I understood—I saw the marshal’s certificates of deposit in 
the bank of Selma for $40,000, and Blake also had certificates in that bank for that amount 
or for a very large amount. 

Q. You do not know whether there was any proceeds in these particular cases.—A. 0„ 
yes, there were proceeds. 

Q. The question is, what was paid to the United States.—A. I do not know, because I 
had nothing to do as attorney with paying the United States ; it was the marshal’s business 
to see to that; the orders are, usually, that the amount should be paid into the registry of 
the court, subject to the order of the Secretary of the Treasury. 

Q. Have you not drawn orders or decrees which were subsequently signed by the judge, 
providing that the proceeds of property condemned should be paid into the registry of the 
court subject to the order of the Secretary of the Treasury of the United States.—A. Yes ; 
that is the first provision of an orjjer of distribution, that altar the division the balance should 
be deposited in bank subject to the order of the Treasury Department. 


404 


Q. Did you ever bear of John Hardy, Blake, or anybody else connected with the court, 
depositing money in the registry of the court, subject to the order of ^ the Secretary of the 
Treasury according to the first provision of the order of distribution, in the bank ot Selma 
or anywhere.—A. I do not know anything about it; they are officers that had their own 
business to attend to; I had nothing to do w’ith that. 

Q. Did you never hear of an order directing the deposit of the proceeds of the sale ot 
condemned property in the registry of the court, subject to the order of the Secretary ot the 
Treasury.—A. No, I think not. 

Q. I read the fourth section of this order of distribution of the 29th of December, I860, as 
follows: “That after all the costs, charges, and disbursements, legally incurred herein, are 
deducted from the amount of said judgment, one-half ot the remainder to be paid over to 
E. E. McCroskey, who has heretofore lodged an information with the district attorney of the 
United States, which information is to be filed in the clerk’s office herewith ; the other half 
to be held in the registry of the court, subject to the order of the Secretary of the Treasury 
©f the United States as provided by law.” Did you not draw this order of distribution.— 
A. I do not know. 

Q. Was it not in your handwriting.—A. I do not know. 

Q. Do you remember having seen such a provision of an order of distribution.—A. I do. 

Q. Then do you remember of having known of such a deposit being made, as that required 
by this order of distribution, of any funds in the registry of the court, subject to the order of 
the Secretary of the Treasury.—A. I do not know anything about it. 

Q. You do not know of Hardy’s having deposited any money, the proceeds of the sales of 
confiscation of property, in the registry of the court.—A. I do not know anything about it: I 
have no connection with his affairs whatever; I have stated before that I had seen certifi¬ 
cates of Hardy’s showing that he had deposited money in the Bank of Selma. 

Q. That was not depositing it in the registry of the court, was it.—A. You can take this 
statement for what it is worth. 

Q. To whom were these certificates payable.—A. They were payable to Hardy. 

Q. The money was not then in the registry of the court, was it.—A. I told you that these 
certificates were made in the First National Bank of Selma, payable to John Hardy, United 
States marshal. 

Q. Do you remember being present in Mobile and making a motion in the circuit court of 
Mobile for the transfer of a case from the docket there to Montgomery.—A. Yes, sir. 

Q. By what title did you call that cause in making the motion ; mention the particular 
title in the cause ; you say you made such a motion.—A. Yes, I did; my recollection is that 
it was the cause of the United States vs. 600 bales of cotton; as the attorney of the 
United States, I had filed a libel against 600 bales of cotton belonging to the Planters’ fac¬ 
tory at Autaugaville; some time after the libel vras in progress I received instructions from 
the Attorney General stating that the property of a corporation could not be proceeded against, 
but that the proceeding must be against the individual corporators, and that the property 
seized as the property of a corporation must be released. I supposed at the time that this 
matter had been represented to the Attorney General by some other parties w r hom I did not 
know; I released; under that order, all the cotton that belonged to the Planters’ factory at 
Autaugaville, and reduced the amount from 600 bales to 350 bales; 350 bales of cotton 
beyond doubt was the property sold or given by the Confederate States to the Planters’ fac¬ 
tory to manufacture clothing for the confederate army, but before it was manufactured into 
clothing the rebellion was ended. The property having been proceeded against by a libel as 
the property of the individual corporators, was under the charge, as I understood, of a mar¬ 
shal or his deputy at Autaugaville; but it had been seized, and, against the consent of the 
deputy marshal, Davis, the cotton had been taken to the Alabama river, four miles off, the 
greater portion of it, and shipped down the river to Mobile before the deputy marshal was 
aware of the fact, and he immediately followed it, with my instructions to seize it at Mobile 
and to hold it there; before the marshal could ascertain where the cotton was, it w'as already 
in a warehouse at Mobile, and the district attorney of the United States at Mobile had seized 
itagain under a new libel of information. There was the cause in Montgomery, in my dis¬ 
trict, against 350 bales of cotton, and 239 bales of that lot had been shipped to Mobile and 
reseized. I went to Mobile, drew up a petition setting forth the facts that the libel of infor¬ 
mation had been filed in Montgomery, and that the cotton had been seized and taken aw*ay by 
night out of the district, and an order was made that it should be returned to the Montgomery 
district. 

Q. Did you call it by the title of 350 bales or 239 bales.—A. I think by the title of the 
cause as it was proceeded against in Montgomery—350 bales. 

Q. That was after the Attorney General had given orders to dismiss as against the bal¬ 
ance of the property.—A. Yes ; the balance, over 350 bales and up to 600 bales, had been 
dismissed, and the cause then took a new title. 

Q. You did not call it by the name of the United States vs. 239 bales of cotton, did 
you.—A. I think I must have mentioned the title of the cause in Mobile in order that they 
might ascertain what the cotton was, because there the title was 239 bales. 

Q. If you called the judge’s attention to it by a petition stating these facts, what occasion 
was there to give him the information by calling it 239 bales. Would he not understand it 


405 


just as well to have called it 350 bales.—A. I undoubtedly called it by both titles. 1 have 
no distinct recollection that I called it ‘239 bales, but I think I called ‘it by the title of 350 
bales. I am satisfied that I mentioned both cases in the petition. 

Q. But in open court, when you made the motion, did you represent and call it by the 
name of the United States vs. 239 bales.—A. I merely mentioned to the court that the 
petition was on file. 

^ Q. Was this petition served upon the attorneys representing the 239 bales of cotton.—A. 
They were in court. 

Q. Were they notified before this petition was served upon them.—A. I do not know 
whether they had previous notice of it or not. I know that the attorney appeared in court. 

Q. Did anybody have notice in that cause before the order was made by the judge to send 
it back to Montgomery.—A. The motion was made in open court by the title of the Mont¬ 
gomery cause—350 bales. 

Q. Was there any notice given that the petition represented 239 bales, so that they might 
have known if they had been in court that the cotton was that which had been sent back to 
Montgomery. Do you know whether they had any knowledge of it or not.—A. No, I do 
not; except by stating what was done in court; I made a statement of the cause in court, 
and the petition was filed in court. 

Q. Was the attention of the attorneys called to it.—A. I do not know. 

Q. Did you call their attention to it.—A. I do not know. I will state that the motion 
was made in court, and that Judge Jones- 

Q. The motion was made in court against 350 bales. That did not call attention to the 
239-bales case, did it.—A. Judge Jones opposed the motion, and had no difficulty whatever 
in ascertaining the case. Judge Jones was the counsel on the other side, representing the 
239 bales. 

Q. You knew then positively that he knew it.—A. I only know it from what I tell you— 
that he stood up and opposed the motion. 

Q. Y r ou do not know that he had any knowledge of it before the motion was made.—A. 
He was bound to have notice when I made a statement of the cause; and it was postponed 
for a day after the motion was made ; but whether he had written notice I do not know. 

Q. What circumstance is there which will give notice to a man, if he calls a case by the 
name of 239 bales and you call it by the name of 350 bales, that the two are the same case.— 
A. The very fact that I stated—the transfer of the case from Montgomery to Mobile, and 
all the circumstances connected with the transaction. What attorney does not know his 
case after such a statement of it ? 

Q. And you made that statement in open court.—A. Yes. 

Q. Was Judge Jones counsel of that cause.—A. I understood so. 

Q. Were not Smith & Herndon the representatives of Nun &. Thompson or the Planters’ 
factory.—A. I do not know it of my own knowledge; I heard afterwards of it; I did 
not know of it at the time. 

By Mr. Eldridge : 

Q. Who was it that opposed your motion to send the case of the 239 bales from Mobile to 
Montgomery.—A. Judge William G. Jones. 

By Mr. Semple: 

Q. Whom did he claim to represent.—A. Nun & Thompson, or the Planters’ factory. 

Q. Did he understand that you were jnoving to have the 239 bales case sent to Montgom¬ 
ery for disposition.—A. There is no doubt about it; none in the world; because I kicked 
up quite a fuss about it, I assure you, and was very mad. It was one of my principal 
causes in Montgomery. 

Q. Who was the district attorney at Mobile at that time.—A. I think Worrall was acting 
district attorney. He did not appear upon the motion. He knew of the motion I made ; I 
showed him the petition. 

Q. Before or after the motion was made.—A. No; I am wrong about that. It was Mar¬ 
tin who was the district attorney there. 

Q. Did he appear upon the motion.—A. No; he was in court; read the petition and, I 
think, consented to it, and his consent was worthless on the paper for the transfer of the 
cause to Montgomery; and if the paper can be found, that will appear. 

Q. Was the claim which was put in against the 239 bales the same as that which you put 
in against the cotton on behalf of the United States at Montgomery. —A. You mean were 
the charges the same ? 

Q. Yes.—A. So far as I could understand, they were the same. After the cotton got to 
Mobile, the information was filed with the officers there by a man by the name of J. C. Caulkins; 
and he was the Confederate States agent who had supplied the factory with the cotton before 
the surrender or the suppression of the rebellion. _ . 

Q. Can you tell me whether the claim or the ground on which the forfeiture to the United 
States, or the right to the United States, accrued, was the same as that put forth at Mont¬ 
gomery.—A. It was pretty much the same. The gravamen of the charge in both cases 
was that the cotton belonged to the Confederate States, and was sent there to be manufac¬ 
tured into clothing for the rebel army. 



406 


Q. Had these 239 bales been spirited away from the marshal at Autaugaville, where this 
factory was.—A. It was so represented to me. 

Q. Was that cotton lost to the United States if it bad not been sued against at Mobile.— 
A. Oh, no ; I had to send an officer down after it. I threatened to prosecute him for it, and 
he went down and found it there, but before he could get at it this man Caulkins gave in¬ 
formation to the district attorney in Mobile, knowing very well that the cotton Avas liable 
in Montgomery. Caulkins was one of the principal witnesses in Montgomery and wanted 
to become informer down there in Mobile. It was taken by night. 

Q. The balance of this cause is pending yet in Montgomery—it has not yet been disposed 
of.—A. I do not know that it has ever been reached in Montgomery. 

By Judge Busteed : 

Q. You were dismissed from your office of district attorney.—A. Yes, sir. 

Without any charges preferred against you that were shown you.—A. I have never, 
to this day, seen one of the charges or known anything in reference to the cause of my dis¬ 
missal. 

Q. Did you seek to find out on what charges you were dismissed your office.—A. As soon 
as I ascertained, through rumor, that charges were preferred against me in Washington, I im¬ 
mediately proceeded to Washington and called upon Mr. Stanbery. I called upon the 
President first; I told him I understood charges were preferred against me, and, being well 
acquainted with him, we had a conversation upon the subject, and I told him that I wanted 
an opportunity to defend myself from the charges, and I hoped I would be permitted the 
opportunity. Said he, “Certainly; you must have the opportunity; and make yourself 
easy about it. You must be furnished with any charges preferred against you. Go and see 
the Attorney General.” I called upon the Attorney General and had a conversation with 
him ; I told him I was informed that charges were made against me ; that I wanted an op¬ 
portunity of defending myself, and that I had had a conversation with the President and 
the President had directed me to come and see him. Mr. Stanbery told me', “ Yes, there 
are some papers here ; you may rest assured that no steps shall be taken against an officer 
of the government until he has full opportunity of defending himself. You may go home 
and attend to your business, and you will be informed before any final proceedings are taken 
against you.” I went home and found out that another officer had been appointed in my 
place. I came back to Washington; I called upon the Attorney General for the charges, and 
then he informed me that it was against the policy and rules of his office to furnish any 
charges; and I never knew for what cause or reason—except a mere suspicion—I had been 
removed from the office of district attorney. 

Q. Did you give Judge Bugbee, your successor in the district attorneyship, notice of the 
proceedings on the or;ler of distribution made in June, 1867, in the Morris & Johnson case.— 
A. I notified Bugbee personally, in my office, of the notice made by Judge Chelton ; he said, 
“I know nothing about it; you go and attend to it, and whatever you do I am satis¬ 
fied with.” 

Q. Look at the paper shown you and say whether that is the order of distribution first 
made in the case of the United States vs. Morris & Johnson, and which you say was sus¬ 
pended.—A. Yes; that is the order drawn up by me and signed by the judge. It is the 
order you kept and on which you did not act. It is the first order. It is in these Avoids : 

“District Court of the United States for the Middle District of Alabama, November term, 1866. 

“ United States of America 

vs. ? 

120 Bales of Cotton, Josiaii Morris & John F. Johnson. ) 

* ‘ Order of Distribution. 

“ In this proceeding a decree of condemnation having heretofore been rendered against 120 
bales of cotton and a judgment for the value thereof, namely, $30,000, against Josiah Mor¬ 
ris & John F. Johnson, and execution to be issued thereon, it is now ordered as folloAvs : 

“First. That five per cent, of the amount of said judgment, when collected, be paid over to 
the United States district attorney, J. Q. Smith, as a reasonable fee for his services in the 
prosecution of these proceedings. 

“ Second. That one per cent, of the amount of said judgment, when collected, be paid over 
to the United States marshal, John Hardy, as a reasonable fee for his services rendered in 
these proceedings. 

“ Third. That one per cent, of the amount of said judgment, when collected, be paid over 
to the United States clerk, E. C. Y. Blake, as a reasonable fee for his services rendered in 
these proceedings. 

“ Fourth. That after all the costs, charges, and disbursements legally incurred herein are 
deducted from the amount of said judgment, one-half of the remainder to be paid over to E. 
R. McCroskey, who has heretofore lodged an information with the district attorney of the 
United States, which information is to be filed in the clerk’s office herewith; the other one-half to 


407 


be held in the registry of the court, subject lo the order of the Secretary of the United States 
as provided by law. 

“ l" itth. I he clerk will take and file receipts under this order with the papers in these pro¬ 
ceedings and this order. 

“ RICHARD BUSTEED, Judge. 

“December 29, J860.” 


Q. Was this order made of the date it bears ? What is the date of it.—A. The date is at 
the bottom, in the handwriting of Judge Busteed. It is December 29, 1866. 

Q. Was that the date at which it was actually signed.—A. Yes; that was the date of it. 

By Mr. Semple : 

Q. Did not John Hardy have that order at the time you made the settlement with Mc- 
Croskey.—A. I do not think he ever had it. 

Q. Did he not give it to Storer.—A. I do not know. 

Q. Hid you give it to Storer.—A. I do not know that I did. 

Q. If Storer got that order for the purpose of applying for it, how did he get it.—A. 1 
cannot tell. 

Q. You say it was left in your hands.—A. Except it be in this way: that in making up a 
transcript he may have asked me if I had any papers in the case, and I may have taken the 
paper up and merely looked at the outside of it and passed it to him. If it happened at all, 
it was, in all probability, in this way. 

Q. Storer said that he called on you for the order of distribution in order to make a tran¬ 
script and you told him that Hardy had it; that he went to Hardy and got that paper, from 
which he made out the transcript, and Hardy has said that he had that order of distribution 
at the time he settled with McCroskey, and that it was the order under which he did settle 
with McCroskey, and that he gave it to Storer when he called on him. 

Witness. That particular order? 

Mr. Semple. Yes. 

Witness. I think they are mistaken. 

Q. If they are mistaken, how did Storer get it.—A. I do not know, except as I have tpid 
you; that in making up the transcript he would come to my office and I would pass him out 
the papers in the case, and, it may be I handed this paper to hior. But I think that Storer, 
and probably Hardy, (not looking at these papers as I did when 1 gave them,) might not 
have known that there were t wo papers of the kind. 

Q. Hardy has said that he had no other order of distribution than that.—A. I cannot 
explain that. 

Q. Did you give him the other order of distribution under which you claimed the fees that 
were allowed you.—A. I did give it to him. 

Q. And you do not know where the other one is now.—A. I do not. 

Q. How came you to suspend or not to act under this order.—A. Because I could not. 
Because the money was not collected for near four or five months afterwards. 

Q. When the money was collected, why did you not act immediately under that order.— 
A. I could not do it, because the order had passed its force. 

Q. Was it not intended to operate when the money was collected—A. They notified me, 
and I think McCroskey, that this money to be collected by the marshal should not be paid 
over to McCroskey until the cause was disposed of in the Supreme Court, and that the 
informer was not entitled to the proceeds until the final decision. 

Q. Was the notice in writing that was served upon you. — A. Yes. 

Q. Have you got that notice.—A. No. 

Q. Where is it now.—A. It is either in my office or the clerk's office. 

Q. By whom was the notice served upon you —A. By Mr. Semple’s partner, Judge Rice ; 
but he got Judge Chilton to attend to it for him, and he had a day appointed and had the 
judge examine into it, and a new order was founded on this examination as to who the real 
informer in the case was. 

Q. There is evidence here—a letter from Judge Busteed to Mr. Rice—informing him that 
the informer claimed a right to have the money distributed, and notifying him to appear 
before him before the 4th of June, 186?, to show cause why it should not be distributed. 
After being informed of that, I wish you to say whether you still adhere to your statement, 
that Judge Rice gave you notice that the money must not be paid over.—A. Judge Bus- 
teed’s order was founded upon the previous notice of Judge Rice that the money should not 
be paid over in this case. The order of the judge was to inquire into this very point. Judge 
Busteed’s order was simply founded on the previous notice of the counsel of Morris that 
his money should not be paid over. 

Q. I understood you that one of these orders of distribution was not such a decree as the 
party from whom the money had been collected could appeal from.—A. I told the gentlemen 
of the committee that the appeal was taken from, the judgment of the court in the proceedings 
in the case, and not from the order at all. 

By Mr. E ldeidge : 

Q. Did you and Judge Busteed board together at any time while you were in Mont¬ 
gomery.—A. Yes. 


408 


Q. In the same house.—A. Yes. 

Q. Did you both provide for the family.—A. No ; I did not. 

Q. Did you board with him at any time in his own house, while he kept house.—A. 
Judge Busteed never kept house in Montgomery. 

Q. Did you board with him in Mobile.—A. I was there a few days; I was taken sick at 
his house. 

Q. Did you tell the clerk of the court, Judge Cuthbert, that you and Worrall had to share 
in the support of Judge Busteed’s family.—A. Never. 

Q. Was there any such thing.—A. Never. 

Q. Did you at any titne share the fees of the district attorney with Judge Busteed.—A. 
never. 

Q. Did he receive any portion of them.—A. He did not. 

Q. Did you ever give him any present for the interest he took in you, or for the services 
he rendered you.—A. Never, for that purpose. 

Q. Did you ever make him any present while he was acting as judge and you were acting 
as district attorney.—A. I have at various times made him presents of such articles as 
clothing. At one time I was getting some clothing in New York, and I ordered the tailor to 
make up some articles of clothing for him. At another time, if I remember right, I did the 
same thing. He has made me a present at some time of a coat and a hat. 

Q. What other presents did you make, except such little articles as you have spoken 
of.—A. I do not remember any other than a hat or clothing—such things as that. 

Q. Did you make him these presents more than once or twice.—A. Yes, twice; aud I made 
him a present, I think, in New Orleans, of an opera glass, and once of a cane. 

Q. Are these all the presents of any considerable value you ever made him.—A. I gave 
him $100 at one time. 

Q. When was that.—A. When Hardy and myself were appointed, but were not confirmed. 

Q. What did you give him the $100 for —A. To pay his expenses here. 

Q. He c$me down here to get you confirmed. 

A. No; not exactly. He came here on other business. I told him to look into that as he 
was here. 

Q. Is that all.—A. That is all, except some little things. 

Q. I do not refer to little things.—A. Judge Busteed and myself have been very friendly. 
In going along the streets and stopping into a store, I would buy some article for him, and 
he would buy for me. 

Q. Are these little things which you have exchanged with one another, aud this $100, all 
the presents you have ever made him since you and he have been acting together.—A. That 
is all. 

Q. Have you made presents to his family.—A. Never. 

Q. Have you made presents to any person for him.—A. Never. 

Q. Have you promised in any way to give him money in consideration of what he has 
done? Is there any understanding, express or implied, that you were to share the proceeds 
of your office in any way with him.—A. None whatever. I have been very intimate with 
Judge Busteed, but there never was any conversation between us in which he or I said any¬ 
thing wrong in reference to it. 

Q. Did you, before any cause was heard in court, talk with the judge how it should be 
disposed of.—A. Never. 

Q. You and he roomed together.—A. Whenever he came to Montgomery. 

Q. Did you not talk over your causes with him.—A. Often. 

Q. Did the judge advise you how to conduct a cause.—A. Never. 

Q. Did he help you in court how to get through your cause.—A. 1 do not know about 
that; I very often thought, and I think I have so spoken in and out of court, that he was 
helping me in the wrong direction. He often made rulings that I thought were entirely 
wrong. 

Q. Has he helped you through other causes.—A. He may have suggested some evidence 
both in civil and criminal causes, which I had not thought of. He has, no doubt, suggested 
ideas in court, and probably examined witnesses in court, after I had got through, on some 
point, the same as you do now questions that the counsel may have forgotten or overlooked. 

Q. Do you know of the judge receiving any present from any suitors in court.—A. I do 
not. 

Q. From any person, while he was in Alabama, as judge, did you ever know him to 
receive any presents.—A. Never, of any particular value. I did not know of his receiving 
presents of any value from anybody. 

Q, Did you and Hardy together contribute this $100, of which you have spoken.—A. We 
did. 

Q. You say that is all the compensation or present you ever made the judge of any value, 
either directly or indirectly.—A. Never, directly or indirectly, except there may have been 
probably fifty different things of the class I speak of—little things where he and 1 have 
exchanged presents. 

Q. And you say there is no understanding between you and him by which you are in any 


409 


manner to compensate liim for the services lie, as judge, lias rendered you f—A. He has 
never rendered me any services. 

Q. Is there no understanding by which you are to reward him for what he has done 
tor you as judge ?—A. lie did nothing for me except as a matter of friendship. 

Q. Is there any understanding between you that he is to reward you for any ser¬ 
vices?—A. I have never rendered him any services. 

Q. You can answer the question then.—A. I can answer it, but I do not want to put 
it on the ground that lie has assisted me or made me material aid. 

Q. There is no relationship existing between you in consequence of which you are 

under obligation, either directly or indirectly, to pay money to Jiuhm Busteed ?_A. 

None ; except so far as common friendship is concerned. 

Q. That does not require you to pay money, does it ?—A. It does not. 

Q. It does not require you to share with him in any money ?—A. It does not. 

Montgomery, Alabama, June 2, 1869. 

Malcolm Graham, sworn and examined: 

By Mr. Semple : 

Question. It you were ever present in company with Judge Busteed when anything 
was said by him in relation to the transfer of a cause, pending in the circuit court of 
Montgomery County, against John Hardy, to his court, please state what Judge Busteed 
said to you in that conversation.—Answer. I do not recollect that I was ever in Judge 
Busteed’s presence but once when John Hardy was present, in connection with this 
subject. I remember being present once in the marshal’s office when Judge Busteed 
came in, and there was some conversation about the transfer of a case that was pend¬ 
ing in the circuit court of Montgomery County to the United States district court at 
Montgomery. Judge Busteed, I think, had returned the night before, in company with 
John Hardy, from Washington City, and John Hardy had learned that a judgment had 
been taken against him by default, in an action of trespass, I believe for $10,000. I do 
not remember now who the parties in the case were. Hardy desired me to have the 
case transferred to the United States district court. Judge Busteed came in the room, 
and John Hardy mentioned the fact that I was his counsel, and Judge Busteed stated 
to me that he desired me to use dispatch in having it done, as he (Judge Busteed) was 
on his way to Mobile—I think that was what lie said—and needed Mr. Hardy there. 
That was the impression, at least, that was made on my mind. I know the fact that 
he (Judge Busteed) was on his way to Mobile, and I think the whole court knew it. I 
believe that Mr. Hardy went to Mobile before the circuit court had a transfer of the 
cause. The conversation was exceedingly brief. He simply stated this. He seemed 
to be in a hurry when talking to me. 1 do not remember that he asked me in words to 
have it transferred to his court, but it was understood that that was the action to be 
taken ; and he told me to use the utmost possible dispatch. I wanted Hardy to make 
an affidavit to the application before he went away; and Judge Busteed told me that 
lie would regard it as a personal favor to himself (I remember he used that language) 
if I would use dispatch, and stated, I remember, that he would need John Hardy in 
Mobile. I think that was about all that transpired in that conversation. 

Q. Were you employed by the executors of Peter B. Hasten in the case of the United 
States vs. a number of bales of cotton claimed by the executors of Hasten ?—A. I was. 

Mr. Semple stated that he proposed to show by the witness that after the seizure of 
this one hundred bales of cotton, all but twelve bales were released by an agreement 
made by him (Graham) with the district attorney, J. Q. Smith, and that he would pro¬ 
duce the record showing that this arrangement was carried into effect by the court. 
He offered this on the assumption that there was evidence in the record in this case 
tending to show a conspiracy between said district attorney and the judge. 

Mr. Bingham. I object to the introduction of the evidence proposed, on the ground 
that it is not shown here, at all, by any testimony given in the case, that in this mat¬ 
ter of the one hundred bales of cotton claimed by the executors of Hasten, the 
judge was in any wise corruptly privy to an arrangement in the matter ; the offer be¬ 
ing made to show the arrangement between the district attorney and the claimants. 

Mr. Eldridge. I am in favor of receiving the testimony, because 1 think there is 
some testimony taken by the committee tending to show that there was a conspiracy 
of confederation between Judge Busteed, James Q. Smith, the district attorney, and 
John Hardy, the marshal, to unlawfully dispose of similar cases to this for the purpose 
and to the end that the officers of the court might receive unlawful fees or costs; that 
I had passed upon this question before, with the concurrence of :ill the members of the 
sub-committee of the previous Congress, and see no reason now to change the conclu¬ 
sion at which I then arrived. I think, further, that the ^testimony should be received, 
in order that the whole committee should determine the question whether the testi¬ 
mony does so connect Judge Busteed with such transactions as to charge him with the 
acts and doings of Hardy and Smith. 

Mr. Loughridge. Before this evidence can be admitted, I think we should be satis- 

27 B 


410 


tied that- there is apn'wwi fade case of conspiracy shown by the evidence, connecting 
Judge Busteed with such conspiracy. Without expressing any opinion as to whether 
there is any such evidence, it is sufficient to say that there is no satisfactory evidence 
sufficient to make a primal facie case; and ] cannot consent to open the door to so wide 
a held of examination at this time. 

The evidence was therefore not allowed. 

Witness. I remember another fact. I called on Judge Busteed myself. It don't 
matter what influence operated upon me; but at any rate I went to Judge Busteed for the 
purpose of knowing where the law could be found by which I would be authorized in 
making my application to him instead of to the circuit judge of the State, in getting a 
removal of this case. I think Judge Busteed’s only reply was that the law could be 
found in the judiciary act of 1789,1 think. I left him then, but I was not satisfied that 
I could act upon that law, and I acted upon the recent act of Congress—the act of 1862 
or 1869. I think Mr. Worrell was present at this interview. I do not remember 
whether it was Mr. Worrell or not. At any rate it was some gentleman with whom I 
was not personally acquainted, and I think he was then acting perhaps as district attor¬ 
ney for Mobile. Those are the only interviews I ever had with Judge Busteed on the 
subject. 

By Mr. Semple : 

Q. How came you to go to Judge Busteed ?—A. I could not tell that. 

Q. Why?—A. Because I should violate professional confidence if I did. I will take 
occasion to say that I was not induced by anything Judge Busteed said, to go to him. 
These were the only conversations I had with him on that subject, and they were ex¬ 
ceedingly brief, and I believe about the only things that I ever did talk to him about. 

Q. Was there anything occurring at the time of this interview between yourself and 
the judge, when you went to see the judge for the purpose of making inquiry for what 
authority could be found for his taking action in ordering the removal of the case from 
the circuit court to his court, in the conduct or language of the judge to you, which 
indicated that he had any knowledge that you would call upon him for that purpose; 
if so, what was it ?—A. I cannot say there was. He was sitting down in a back room 
of Judge Smith’s office when I called on him, and in company with some gentleman 
whom I do not now recollect. 1 do not remember really what I said to him—the lan¬ 
guage that I used, or what he said to me that brought me directly to the purpose of my 
visit; but at any rate I know that the question was asked and answered in that way. 

Q. Asked by you of whom?—A. Of Judge Busteed—where the law was of which 1 
could avail myself in making the application for the removal of this case from the cir¬ 
cuit court of Montgomery County to the United States district court. 

Q. Making application to whom?—A. I think it was to Judge Busteed; but I am not 
sure that that was said. I simply asked for the law. At least that was what was done. 
I was referred to that law. 

By Judge Busteed : 

Q. John Hardy was then marshal of the United States for the middle district of 
Alabama?—A. Yes, sir. 

Q. The default that was taken against him was in a suit brought against him for a 
seizure made by him as United States marshal ?—A. Yes, sir. 

Q. The object of your removing the case against Hardy from the circuit court, so- 
called, of Montgomery County, was that Hardy could not get justice in that court; 
wasn’t it?—A. I think he made an affidavit to that effect. 

Q. You were his attorney ?—A. Yes, sir. 

Q. Upon that affidavit you made that motion?—A. Yes, sir. 

Q. And upon that affidavit you made whatever motion you subsequently made?—A. 
No. I had better state this: That there w as a judgment by default against John Hardy, 
with a writ of inquiry. It was executed in his absence, and I think the verdict of the 
jury was $10,000. I had first to make application to set aside this judgment by default, 
which I had to do upon the statement of John Hardy, upon oath, and afterward I made 
an application—as soon as the case was reinstated upon the docket—I made an appli¬ 
cation for its removal to the United States district court, under*the act of Congress of 
1862 or 1863; and the judge below granted the order, after hearing the argument. The fact 
» is, I think, it was peremptory, upon application being made there by an officer of the 
United States in a suit brought against him, that the judge should remove it. The only 
question in the case that was difficult, was the question as to whether or not the act was 
committed before the rebellion ceased—I taking the ground that the rebellion did not 
cease legally until the proclamation of the President had been issued, that being the 
political department of the government; the other side taking the ground that it ceased 
with the cessation of actual hostilities. 

By Mr. Eldkidge : 

Q. How did Judge Busteed know'the fact- that you w r ere about to make such an appli¬ 
cation as that ?—A. The last application ? 


411 


Q. Yes ; the time that ho made this Lanark to you that it would he a personal favor 
to him il you would use dispatch in making it. How did he know that such an appli¬ 
cation was to he made? A. \\ ell; I cannot tell that. He did not inform me; or if he 
did, I don’t remember. 

Q. Did he get the information from you?—A. No, sir; Ido not know that he had 
the information. 

Q. You have no knowledge yourself of how he gained that information ?—A. None 
whatever. 

Q. He did not gain it from you?—A. No, sir; I certainly did not tell him myself; 
and Judge Busteed didn’t tell me how he gained the information. 

Q. At the time you called on him he knew the fact that you were to make such an 
application ?—A. I cannot say that; I really do not know. # The committee must under¬ 
stand that there were two interviews at two different places. 

Q. I am speaking of that time when he made that remark to you, that you would use 
dispatch ?—A. Well, that was in the United States marshal’s office. 

Q. Who were present ?—A. The marshal was present, and Judge Busteed and myself. 

Q. Any one else?—A. No, sir. 

Q. Was the marshal there previous to you going, or did he go with you ?—A. My re¬ 
collection is that I went there by appointment with him, the marshal; he was my 
client. 

Q. Were the judge and the marshal together when you went there?—A. No, sir. 

Q. Who went first, you or the marshal, to the office ?—A. I really don’t remember 
how I got there, or whether I went with him or not, but I am sure that I went there 
by agreement with the marshal. 

Q. Was the application for the removal of the case made previous to that?—A. No. 
sir; subsequently. 

By Mr. Bingham : 

Q. You went without solicitation from the judge ?—A. Yes, sir. 

Q. And he gave as a reason for dispatch, that he was going to Mobile ?—A. I do not 
know that he stated it as a reason, but he stated it as a fact, that he was going to 
Mobile, and I believe that lie did go. 

Q. And in that connection he said he wanted you to act with dispatch, because he 
was going to Mobile?—A. Yes, sir; my recollection is that Mr. Hardy staid here 
several days before he left, and before I got the motions prepared, and his affidavits to 
them. 


By Mr. Smith : 

Q. Had you got the judgment by default, and the execution of the writ of inquiry 
set aside, when you went to see the judge?—A. Not at all. This morning is the first 
time I was ever applied to or notified by Colonel Semple that I would be called upon 
to testify in this case. This morning is the first time that Colonel Semple ever spoke to 
me on the subject that I remember, or any one else, in connection with this case, since 
this committee has been here. 

By Judge Busteed : 

Q. Had you communicated to Mr. Semple before this morning the facts to which you 
have sworn here to-day ?—A. I never did. 

Q. Did you communicate them to any person with direction to communicate them to 
Mr. Semple ?—A. No, sir; 1 never did { but I will say that I communicated the main 
facts to which I testified this morning to Mr. Semple, at his request this morning; lie 
asked me what I knew about if. 


Montgomery, Ala., June 2, 1869. 

Cornelius Cadle, jr., sworn and examined. 

By Mr. Semple : 

Question. Are you in possession of the books of the National Bank of Selma, as re¬ 
ceiver appointed under the act of Congress?—Answer. Yes, sir. 

Q. Will you please exhibit to the committee the account of the district court of the 
United States with the National Bank of Selma?—A. Yes, sir. 

By Mr. Eldridge : 

Q. Have you the book before you ?—A. Yes, sir. 

Q. What'book ?—A. The ledger; I have also a book labelled 11 checks paid,” the list 
of deposits, and the day-book. 

Witness. Mr. Blake sent me a statement of his account with the bank ; that is, of the 
account of the United States district court. I discovered an error in his account, or 
rather in the account of the books. 

Q. Which books?—A. In the account of the books of the bank. Upon examination I 


412 


found that Micon & Morgan, bankers, of this city, had been credited with $841 70 erro¬ 
neously, which they did not claim, and which belonged to the district court. 

Q. Was that a debit?—A. It should have been a credit to the court, and was credited 
to another party. I corrected it on the book afterward. 

Q. What was the amount standing thereto the credit of the district court when the 
bank failed?—A. When I took possession it was $30,192 90; to which is to be added 
this error in the account, of $841 70; which makes a total of $31,034 60. 

By Mr. Bingham : 

Q. That was when the bank failed ?—A. The first item was when I took possession 
of the bank when it failed, which, added to this error, makes the amount stated. 

By Mr. Eldridge : 

Q. Does that sum still stand to the credit of the court ?—A. Yes, sir. 

Q. There has been nothing drawn since that time against the account?—A. No, sir. 

By Mr. Semple : 

Q. The total amount of credits there is $33,381 81?—A. Yes, sir; that is the total 
amount of deposits made in the bank to the credit of the court. The first deposit was 
made on the 10th of December, 1868 ; the last deposit was made on the 28th of Decem¬ 
ber, 1866. On the 15th of April, 1867, the bank failed. 

Q. Have you the checks which, it appears from the books, were drawn ?—A. I have 
not. , 

Q. Were they in your possession at the time when you took possession of the bank?— 
A. I do not think so. My impression is that the checks were returned when the account 
was balanced on the 9th of April. It is usual to return such checks when a balance is 
made. 

By the Chairman : 

Q. Will you make a copy of this account from the records of the bank for the use of 
the committee ?—A. I will do so. 

[See Appendix No. 1.] 

By Mr. Eldridge : 

Q. You know nothing then of what you have stated, except what you find on the 
books ?—A. No, sir. 

By Mr. Semple : 

Q. Has any objection been made to the account by Judge Busteed, or the clerk of the 
court ?—A. No, sir. 

Q. What is the amount of the checks paid, as shown by the check-book ?—A. The 
total amount of the checks drawn and charged to this account is $3,188 91. 

Q. The total of credits which you referred to just now was the credits on the books 
of the bank at the time of the suspension of the bank, being, as stated, $33,381 81. Did 
that include the $841 70 before mentioned as an error?—A. The $841 70 is not included 
in that amount. The total amount of deposits placed in the bank by the court, includ¬ 
ing this error that I corrected, is $34,223 51. 

By Mr. Eldridge : 

Q. Is that the only account upon the books of the bank kept with the court?—A. 
Yes, sir, with the United States court; in that name it is the only account. 

By Mr. Semple : 

Q. What is the style of that account ?—A. “The U. S. dist. court, middle dist. of 
Alabama/’ (abbreviated.) 

Q. What is the style of the account of John Hardy. United States marshal?_A. 

“John Hardy, U. S. marshal.” 

Q. What is the amount of the debit of the marshal in that account, or the amount he 
drew out ?—A. The total amount charged to the account of John Hardy is $32,593 93. 

Q. \\ hat is the whole amount of the deposits of Hardy, that is, to his credit?—A. The 
total amount deposited by John Hardy is $77,949 11, leaving to his credit still remain- 
i.ig on the books $45,355 18. 

Q. W hat is the da te and amount of the last deposit made on that account ?—A. March 
26, 1867, for $30,509. 

Q. Has that account e\ei been transferred on the books of the bank to the successor 
of John Hardy ?—A. No, sir. 

Q. Or to any one else?—A. No, sir. 

Q* you also make out a transcript of this account, to go into the record ?_A. I 

will. 

[See Appendix No. 1.] 

Q. Is there any private account of John Hardy with that bank, other than that *_A 

No, sir. 


/ 


413 


Q. Any of E. CL V. Blake ?—A. There is a certificate of deposit to the credit ofE. C. 
' • Blake tor $2,8/2 15, dated June 29, 1866, certificate No. 63. 

Q' know ot any act, declaration or conduct of the judge tending to show a 

corrupt administration of his office while judge?—A. I do not. 


By Mr. Smith : 

Q. Has the clerk any individual account there?—A. No, sir. 

By Mr. Bingham : 

Q. Is this bank solvent?—A. No, sir. 

Q. lias it gone into liquidation ?—A. It has. 

Q. Do you know what has become of the balance of $45,355 18 to the credit of the 
United States marshal?—A. I do not; it is merged in the general loss of the bank. 

Q. TV hat has become of the balance to the credit of the United States district court 
°f tho middle district of Alabama?—A. It is merged in the general loss of the bank. 

Q* What has become of the amount stated to the credit of tho clerk of that court, 
$28,217 ?—A. It lias gone in the same way; merged in the general loss of the bank. 

By Mr. Eldridge : 

Q. How do you know that to be so ?—A. Well, I know there was a certain amount 
of money credited on the books of the bank when the bank failed, and that money 
was gone when the bank became insolvent. 

Q. All you know is from the books of the bank?—A. Yes, sir. 

Q. You don’t know whether that money is lost or secreted or not ?—A. No, sir, not of 
my own knowledge. 


By Mr. Bingham : 

Q. Do you know anything at all about this bank except what you know from the 
books to which you have been referring to-day, or its deposits ?—A. I know nothing of 
any deposits except by the books. 


By Mr. Loughridge : 

Q. Did you have anything to do with these books before you came into possession 
of them as receiver ?—A. No, sir, I did not. 

Q. Or with the bank?—A. No, sir. 


United States district court , middle district, Alabama. 


18C7. 




1866. 

Jan. 8 

To cash. 

381 

$1,000 00 

Dec. 10 

Jan. 15 

do. 

3S0 

1, 000 00 

Dec. 28 

Mar. 0 

do. 

439 

1, 062 97 


Mar. !) 

do. 

442 

125 94 



Balance. 


30,192 90 





33,331 81 






1867. 





Mar. 9 





June 13 


By cash. 321 

By Fowler & S. 207 


By balance. 

By Micon & Morgan. 274 


*31, 

566 

46 

1 , 

815 

35 

j 33, 

381 

81 

i 30, 

192 

90 


841 

70 

31, 

034 

60 































414 


John Hardy, United States marshal. 


1866. 




1866. 






252 

$1 000 00 

Sept. 5 

By cash.. 

240 

$17,005 11 

Dec 10 

do 

343 

ig' 000 00 

Dec. 31 


238 

7, 435 00 

Dec. 31 

do. 

369 

65 04 

1867. 




1867. 




Jan. 10 

do. 

347 

23, 000 00 

Jan. 2 

do. 

370 

40 25 





Jan. 4 

do. 

374 

691 23 





Jan. 10 

do. 

383 

41 50 





Jan. 16 

do. 

392 

12,985 08 





Eeb. 21 

do. 

427 

1, 200 00 





Mar. 21 

do. 

452 

570 83 







14,846 18 







47,440 11 



47,440 11 




45, 355 18 

Mar. 21 

By balance. 


14,846 18 




Mar. 26 

By cash. 

. 

30,509 00 




45, 355 18 




45, 355 18 





Mar. ( 26 

By balance. 


45, 355 18 

_ 


Upon “certificate of deposit” account there stands to the credit of E. C. V. Blake, clerk, 
deposited June 29,1866. $2,872 15 


I certify that the foregoing accounts of the “ United States district court,” and ot 
“John Hardy, United States marshal,” and of “E. C. V. Blake, clerk,” are correct copies 
of said accounts, as they appear on the hooks of the “ First National Bank of Selina, 
Alabama. 

CORNELIUS CADER, Jit., 
Beceirer First Xational Ban]:, Selma. 

Montgomery, Ala., June 2, 1889. 

Montgomery, Alabama, June 2, 1869. 

Theodore Munx sworn and examined. 

By Mr. Smith : 

Question. Did you know the planters’ factory of Autaugo, and what relation did 
you hear to it ?—Answer. Yes, sir; I was a stockholder in the planters’ factory, and 
owned little over one sixth of the factory ; I have been the agent and principal manager 
of the factory, with the exception of one year, since December, 1855. 

Q. State what you know in reference to any cotton, which, during the war, the 
factory purchased of the Confederate States.—A. Some time in September, 1884, they 
had required me to furnish a lot of goods to the Confederate States, and Captain Gilles¬ 
pie proposed to pay me off in cotton, and agreed to let me have a lot of cotton at the 
then market price, in payment of the debt; I bought of him three hundred and ninety- 
two bales ; Captain Gillespie had charge of the clothing department of the Confederate 
States ; he was to deliver the cotton to me at Vernon, on the Alabama River, near our 
factory. He delivered but three hundred and ninety bales ; I tried to count the cotton 
different times, and I never could make over three hundred and ninety bales, though 
the invoice called for three hundred and ninety-two; that cotton I hauled out to the 
factory, which is between two and a half and three miles from there ; Mr. J. J. Barn¬ 
hart was the superintendent and manufacturer, and had charge of the storing of the 
cotton ; I directed him to store that cotton, but to take all that was in bad order, 
either directly in the mill, or to the front of the warehouse, so that it could be manu¬ 
factured. 

Q. Do you know whether any, and if so, how much of that cotton was manufac¬ 
tured?—A. I only know from what Mr. Barnhart, the superintendent of the mill, re¬ 
ported ty me. 

Q. Go on and state after the war ended, what became of the stock of cotton that 
was on hard at the factory ?—A. In December, 1885, I reported to the stockholders 
that they were sinking money by running the mill, and they directed me then to ship the 
cotton to Mobile, to Nunn tV Thompson, and sell it; cotton was then commanding a 
good price; well, we then put up a screw and commenced putting the cotton in order; 
and this cotton that was bought of the Confederate States, all that was in good order, 
was stored in some outhouses, and not in the main warehouse. That was the first 







































415 


cotton ; there was a good deal of cotton-stealing going on in the country about that 
tune, and I kept some men guarding it, and they did steal some of it from me ; this 
cotton in the outhouses was the first cotton I ordered to be put in order and hauled to 
the river ; that cotton was shipped to Nunn & Thompson, in Mobile. 

Q. How much other cotton did you have besides that which you got from the Confed¬ 
erate fetates? A. We had in all, when we stopped, five hundred and eight bales, I 
think ; that was all the cotton we had on hand when we stopped running 5 but I can 
only speak from the report Mr. Barnhart rendered me, as to how much oAhat was of 
the other cotton, and how much was left of the cotton bought of the Confederate 
States ; we shipped the cotton to Mobile, and I ordered Mr. Thompson to ship some of 
it to Liverpool; wrote down to him before I went down to Mobile. 

Q. Was any shipped to Liverpool ?—A. Yes, sir. 

Q. How much ?—A. One hundred and ninety-seven bales. 

Q. Now state whether the cotton that first arrived at Mobile, or that which arrived 
afterwards, was the cotton that was shipped to Liverpool ?—A. The cotton that I first 
sent to Mobile was the cotton shipped to Liverpool; so our books, papers, and receipts 
showed me when I got there. 

Q. Was any cotton arriving, and did any of it arrive, after you got to Mobile?—A. 
Yes, sir. 

Q. Hid I understand you that that shipped to Liverpool had been shipped when you 
got there ?—A. Yes, sir. 

Q. Please go on and state what took place in reference to the seizure of any of this 
cotton, and give the history of it, with such papers as you have. 

Judge Bustked. As there was no process issued from my court until November, 1865, 
I object to any testimony showing that a process was issued previous to this date, 
without showing the original paper here. 

Judge Bingham. I do not see the pertinency of this testimony, but I shall waive at 
present any objection to it. 

Q. Was the cotton taken from you; and if so, how much and by whom ?—A. Mr. 
Davis, the deputy marshal under Mr. Hardy, put a guard over the cotton, and stopped 
the mill at that time. I then went to Mr. Davis, and Mr. Ward drew up a bond. I 
gave him (Davis) a bond for $100,000 for the cotton. Then afterwards he told me 
there had been an order from the Attorney General, at Washington, to dismiss these 
cases, and told me that the seizure of this cotton had been dismissed, and that he had 
another order to seize three hundred and fifty bales of cotton, being the amount of cot¬ 
ton that I bought of the Confederate States. I gave Mr. Davis and Mr. Hardy a second 
bond, and I believe all the stockholders that were living went on that bond, except 
Mr. Barton Stone. That bond amounted to $180, 000. 

Q. Were the men good and solvent ?—A. Mr. Hardy came there to approve the bond, 
and he said that he approved it, and that it was good. 

Q. Was the cotton then released to you by Hardy?—A. Yes, sir; and he gave me an 
order to ship the cotton. They had before ordered the boat not to take it. 

Q. You got the cotton under the seizure where you gave the $180, 000 bond ?—A. 
Yes, sir. 

Q. And then shipped it to Mobile?—A. A part of it I had already shipped to Mobile. 
I then shipped what I had at the river, except forty-nine bales, which 1 did not get off 
to Mobile. 

Q. You say you had shipped a part of it before you gave the bond?—A. Yes; a part 
of the cotton belonging to the planters’ factory. 

Q. But had you shipped a part of the three hundred and fifty bales that were 
seized ?—A. I do not remember the number of bales exactly that were there. I did 
not count them, and do not know the precise number that was there at that time. 

Q. Until it was released by Hardy, did you make way with any of the cotton be¬ 
fore Hardy took the bond?—A. Not after he seized it. 

q. Then when you went to Mobile, how were two hundred and thirty-nine bales of 
cotton taken from you ; you went to Mobile ?—A. Yes, sir; I went to Mobile, and was 
there when the cotton was seized. 

Q. Seized by whom ?—A. It was first seized by General Tomeny. 

q. Who was General Tomeny ? —A. He had charge of the treasury department there; 
he was treasury agent. 

q. Then what was done?—A. There was a good deal of juggling about the cotton, 
and Mr. Tomeny had me come up to him about every day for some time about the cot¬ 
ton. 1 would go before him, and he would tell me to report next day, and at different 
times. Sometimes I would report in the morning at 9 o’clock, and lie would tell me to 
report at 4 o’clock in the evening. It continued in that way for some time, and we 
8e nt a dispatch to Mr. McCulloch, the Secretary of the Treasury, at Washington, stating 
that they were living us a good deal of trouble and annoyance about this cotton, and 
he ordered the papers sent up to him. The papers were all sent up. General Tomeny 
then brought an order, or the Treasury Department issued an order, for him to turn the 
cotton over to us. 


416 


Q. Did you execute any bond on the delivery of it to the United States ; and if so, 
in what manner?—A. Yes, sir; I gave them a bond. 

Q. For how much ?—A. For forty thousand dollars. 

Q. Have you a copy of that bond?—A. Yes, sir; this is it. [Appended, marked Ex¬ 
hibit A.] 

Q. Did you get the cotton actually when you gave that bond?—A. No, sir; I never 
got it. 

Q. What was the impediment to your getting it ?—A. The United States marshal, 
Hardy, came down there with a squad of men, took possession of it, and hauled it off. 

Q. What became of that cotton ?—A. I do not know what became of it; it was hauled 
off from there in drays. 

Q. Who were your attorneys in the case ?—A. Colonel R. H. Smith, of Mobile, and 
Mr. Herndon. 

Q. At what time in the case did you employ me, or my firm, through me—before or 
after Tomeny had seized your cotton ? 

(Objection by Judge Busteed as wholly immaterial. Question not allowed.) 

Mr. Smith. I asked the question in reference to contradicting the statement of John 
Hardy, taken in evidence in this case, tending to show that that cotton was obtained 
by Mr. Nunn improperly, and brought to Mobile, and done under the advice of counsel; 
and that I expect to show by the witness that the counsel he employed in the case had 
never seen him or spoken to him until after the,seizure had taken place in Mobile by 
Tomeny; and.that the cotton was brought to Mobile after being delivered to him by 
John Hardy. 

Judge Busteed. 1 object to any such statement of this prosecutor appearing upon 
the records, on the ground that it is an unfair consumption of my time, especially in 
view of the exigencies of the public business waiting upon my appearance in court. 

Q. Do you know anything about the exchange of that cotton for other cotton ?—A. 
I do not of my own knowledge. 

Q. At what warehouse did you have it when you had it in Mobile?—A. I do not re¬ 
member exactly the name of the warehouse, but it belonged to McGee and Griffiths. 

Q. State whether that was a good fire-proof warehouse or not. 

(Objected to by Judge Busteed, as immaterial to the issue. Question allowed.) 

A. I think so; that is why I stored the cotton there.' 

Q. Do you know anything, of your own knowledge, in reference to the substitution 
of other cotton for that cotton ?—A. I do not. 

Q. Do you know anything of the sale of this cotton ?—A. Nothing, only from hear¬ 
say. I was not in Mobile at the time. 

Q. Is there any other matter you know of, connected with this, that I have not asked 
you about?—A. Not that I now recollect. 

Q. Do you know why Mr. W. N. Thompson, who was summoned before the committee, 
cannot come here?—A. I only know from wliat he told me. He cannot appear, by rea¬ 
son of the condition of ins family. 

By Judge Busteed: 

Q. In whose handwriting is that? (handing copy of bond, marked Exhibit A, to wit¬ 
ness.)—A. Mr. William N. Thompson’s. 

Q. Is the whole of it in his handwriting ?—A. All except the part in .pencil at the 
bottom. 

Q. All except the pencil names ?—A. Yes, sir. 

Q. In whose handwriting are the pencil names?—A. Mine. 

Q. How do you know that is a copy of the original bond ?—A. Well, sir, we sat down 
at a table and copied it. 

Q. Who is “we”?—A. Mr. Thompson and myself. We read them over several times. 
He first read one, and then T did the other; and then we changed, to be satisfied. 

By Mr. Smith : 

Q. Was the original filled out with the names of the parties?—A. Yes, sir. 

Q. Were the blanks filled out with the names of the parties in the original?—A. 
Yes, sir. 


[Exhibit J.'] 

Know all men by these presents, that we, Theodore Nunn and William M. Thompson, 

of Mobile, Alabama, as principals, and-, of-, as sureties, are held 

and firmly bound unto the United States of America in the sum of forty thousand 
($40,000) dollars, lawful money of the United States, to the payment of which, well and 
truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and 
severally by these presents. 

Sealed with our seals, and dated this the fourth day of May, A. D. one thousand 
eight hundred and sixty-six. 





417 


hereas tlie said Nunn & Thompson, for the planter’s factory, claim two hundred 
and thirty-nine (239) bales of cotton, now under the control of J. M. Tomeny, supervis¬ 
ing special agent of the Treasury Department for the ninth agency, which said cotton 

was taken from the said Nunn & Thompson-, by one J.M. Tomeny,-on the 

allegation that it had been sold by-the confederate authorities, and was in¬ 

cluded iu the surrender. And whereas the said J. M. Tomeny, agent as aforesaid, is 
about to release, under an order from tlie Secretary of the Treasury, to the said Nimn & 
Thompson the two hundred and thirty-nine bales of cotton— 

Now, therefore, the condition of this obligation is such that if the said Nunn & 
Thompson shall release and save harmless the said J. M. Tomeny, and any and all agents 
of him, of and from all and all manner of actions, suits, and proceedings on account of 
the seizure and detention of said two hundred and thirty-nine bales of cotton, and shall 
well and truly keep and save harmless and indemnify the United States of and from all 
claims and demands of any person or persons to said two hundred and thirty-nine 
bales cotton, or on account of the release thereof, then these presents shall be"void; 
otherwise shall be and remain in full force and virtue. 

(Signed) THEODORE NUNN, [l. s.] 

W. N. THOMPSON, [l. s.] 
W. H. ROBERTS, [l. s.] 

B. C. GALUP, [l. s.] 

Signed, sealed, and delivered in presence of-. 


Montgomery, Ala., June 2,1869. 

John Jacob Barnhart, sworn and examined. 

By Mr. Smith : 

Question. Did you fill any, and if so what, place in reference to the planter’s factory 
at Autauga ?—Answer. I filled the place of superintendent. I was superintendent of 
the factory. 

Q. Do you know of certain cotton that had been bought during the war—about 1864, 
I think—of the Confederate States, being brought there ?—A. Personally, I do not 
know that it was bought of the Confederate States. I know there was cotton bought 
which was reported to me to have been bought from the Confederate States. 

Q. How many bales ?—A. I received three hundred and eighty-nine bales. 

Q. What was done with it ?—A. Part of it was manufactured there, and part of it 
was stored in some of the out-houses they had there. 

Q. How much did you manufacture?—A. As near as I could get at it, about one hun¬ 
dred and eighty bales. 

Q. How much was lost?—A. I judge it to be about thirty-nine bales. 

Q. How much remained ?—A. All the balance of that. 

Q. What was done with that which remained ? 

(Judge Busteed objected to the question as wholly immaterial. Question allowed.) 

A. It was shipped to Veruon and from there to Mobile. 

Q. In what order of time was the cotton remaining at the planter’s factory sliipiied, 
after the Avar was over ?—A. That cotton was shipped first, because it was in better 
condition than the balance of the cotton. 

Q. It went to Mobile .first, did it?—A. Yes, sir. 


By Judge Busteed : 

Q. This clothing that was manufactured out of the cotton went to supply the rebel 
army, didn’t it ?—A. I do not knoAV about that. 

Q." To whom Avas it given after it Avas made up ?—A. Well, I had nothing to do Avith 
the business part of the concern, and I could not answer the question. 

Q. For whom Avas the clothing made ?—A. I manufactured it for the company, and 
what they did with it I do not profess to know. 

Q. You do not know as a matter of fact?.—A. No, sir. I do not know. 

Mr. Smith offered the folioAving in evidence: 


[The original admitted by Judge Busteed to be in his own hand-writing.] 

United States of America ) 
vs. > 

600 Bales of Cotton. ) 

The motion to revive the above-entitled suit as to the two hundred and thirty-nine 
bales of cotton, in respect of which the action was discontinued, is granted. 

The suit to stand and proceed as if the district attorney had not discontinued, as to 
tlie said two hundred and thirty-nine bales. 

Leave granted to file an amended complaint. 


March 23, 1868. 

28 B 


RICHARD BUSTEED, 
United States District Judge , tj-c. 






418 


United States of America, Middle District of Alabama: 

I, E. C. V. Blake, clerk of the district court of tlie United States for the middle dis¬ 
trict of Alabama, hereby certify the foregoing to be a true copy of an indorsement upon 
a paper marked answer of Theodore Nunn, agent, &c. United States vs. Two Hundred 
and Thirty-nine Bales Cotton; on tile in this office. 

Witness my hand and the seal of said court, affixed at Montgomery, this 2d June, 
A. D. 1869. 

[SEAL.] E. C. V. BLAKE, 

Clerk United States Dist. Court, Mid. Dist. Ala. 

Montgomery, Ala., June 2, 1869. 

John Hardy, sworn and examined. 

By Mr. Semple : 

Did you sell the property condemned in the case of the United States vs. The Naval 
Foundry and Rolling Mills, lots, and appurtenances in the city of Selma?—A. As United 
States marshal, I sold a lot of ground in the city of Selma, termed as The Naval Foun¬ 
dry, or gun and manufacturing establishment. There were no appurtenances on the lot 
or on the land. * 

Q. What did you do with the money in that case?—A. I deposited about $5,000 of it 
in the First National Bank of Selma. I used a portion of it to pay the expenses of the 
sale, and a portion of it I have got. Here are the items. There may he, perhaps, a 
discrepancy of forty or fifty dollars. The property sold for $16,300. Deposited in the 
First National Bank of Selma, $5,000, to the credit of John Hardy, United States mar¬ 
shal, and the expenses were about $3,600. 

Q. What where those expenses ?—A. I could not- tell, unless I had all the vouchers. 
That is the gross amount. 

Q. I wish to know whether the district attorney’s fees and your fees were included in 
that amount?—A. My fees were not included. 

Q. Were the district attorney’s fees included?—A. These expenses were incurred in 
the surveying of the property, mapping it off, and putting it in condition for sale. The 
district attorney’s fees were about $1,600—between $1,600 and $1,700. About $6,700— 
between $5,000 and $6,000—I have got in my hands, subject to my control. 

By Mr. Eldridge ; 

Q. When was that sale made?—A. I think it was made in February—the first part 
of February, 1867. 

By Mr. Semple : 

Q. Did you make any report of that sale to the court ?—A. I made out an account 
current and a statement of the sale and gave it to Mr. Smith, as my attorney, to make 
an application for the confirmation of the sale, as I did in every other case, pretty 
much. 

Q. You do not know whether that was ever delivered to the clerk, do you ?—A. My 
recollection is that I delivered the papers to Mr. Story, who was acting as deputy clerk. 

I usually gave the papers in the case to the clerk, and my statement and return to the 
attorney. That was the rule I generally adopted. 

Q. What do you mean by your return, as distinguished from the papers in the case ?— 
A. I applied to Mr. Smith for the purpose of making the motion before the court for 
the confirmation of the sale. 

Q. The confirmation of the sale had nothing to do with your accounts against the 
property, did it—the orginal papers ?—A. The order of sale I placed in the" hands of 
the clerk with a return of having executed the order, and then an account of sales I 
gave to Mr. J. Q. Smith. 

Q. Did that report of the sale recite the amount for which it had sold ?—A. Yes, sir. 

Q. And the person to whom it was sold ?—A. Yes, sir, a regular account current. 

Q. Did your report state that the purchasers had complied with the terms of the sale 
by paying the purchase money ?—A. I think it did. Those reports usually contained 
that fact. 

Mr. Semple ^offered and was allowed to put the following in evidence : 

“ In the district court of the United States for the middle district of Alabama, Tuesday, 

December 18, 1866. 

“Present, Honorable Richard Busteed, judge. 




419 


“ The United States of America ) 
vs. 

“ Naval Foundery and Rolling > 
mills, lots, and appurtenances, 
in the city of Selma. 

“A libel of information having been heretofore filed in this case, prayino- for the 
semire and condemnation and sale of the property above mentioned, and due'notice of 
the filing of such information having been given by the marshal of the United States 
and a claim to the property subsequently interposed by John F. Morgan, esq., an attor¬ 
ney ot this court, on behalf of-, and the case coming on to be heard in its 

regular order on the call of the docket, and the said claim being withdrawn by the 
said attorney in open court, and a decree pro confesso, upon the motion of James Q. 
Smith, esquire, attorney of the United States, allowed to be taken ; It, is now, on the 
like motion, ordered, adjudged, and decreed that the land and other property men¬ 
tioned and described in the said information be sold at public auction, under the direc¬ 
tion ot the marshal of the United States for the middle district of Alabama; that 
such sale take place at Selma, where the property is situated; that notice thereof be 
given by advertisement in the Selma Times and the Selma Messenger, to be published 
in each of said newspapers daily for thirty days consecutively before the time of sale ; 
and that the said marshal execute to the purchasers on such sale such deeds of con¬ 
veyance as will vest in them respectively a good and sufficient title. 

“ Dated December 18, 1866. 

“ RICHARD BUSTEED, Judge” 


Present, Honorable Richard Busteed, judge. 


United States 


vs. 


Naval Foundry lots and 
Iron Works lots in Selma. 


Saturday, June 1, 1867. 


In this case the attorney for the United States moves for a confirmation of the sale 
of the land and report of the marshal, now submitted to the court, which sale has been 
made under an order and decree of this court. It was therefore considered by the 
court that said sale be confirmed. 

I, E. C. V. Blake, clerk United States district court for the middle district of Ala¬ 
bama, hereby certify that the foregoing is a correct transcript from pp. 289-396-7 
of the minutes docket of said court, of the proceedings in the matter of the United 
States vs. Naval Foundry and Rolling Mills lots, and that the original report of the 
marshal therein referred to does not appear now to be in this office. 

Witness my hand and the seal of the said court, affixed at Montgomery, this 23d day 
of February, A. D. 1869. 

[seal.] 1 E. C. Y. BLAKE, 

Cleric United States District Court Middle District of Alabama.. 


By Mr. Semple .' 

Q. Did the purchaser in fact pay the purchase money to you at the time of making 
that report ? 

(Question not allowed.) 

Q. You did not pay that money, or any of it, into the registry of the court ?—A. No,, 
sir; because immediately after I made the deposit of a portion of three or four cases, 
the bank suspended, and I have never had an opportunity of settling with the clerk 
for these cases. 

Q. The sale was made, I understood you to say, some time in February, 1867 ?—A. I 
think so. 

Q. And the bank suspended on the 15th of April; didn’t it ?—A. Some time iu April,. 


1867; yes, sir. 

Q. Didn’t you make other deposits of money in the bank between that time of the 
sale and the suspension of the bank ?—A. Well, the last deposit that I made in the 
bank contained a portion of—as I stated a moment ago—some four cases. 

Q. And this was not one of them?—A. Yes, sir; there was $5,000 that was paid on 
this purchase money. 

Q. But you didn’t pay that into the registry of the court ?—A. No, sir. 

Q. You mean you deposited that $5,000 to your account as United States marshal?— 
A. Yes, sir; in the general deposit that I made. 

Q. You have had an opportunity of access to your books and memorandums?—A. 
Yes, sir. 

Q. The last deposit you made in the Bank of Selma was on the 26th of March, 1867, 
of $30,509?—A. 1 think that is about the amount of the last deposit. 


i 




420 


Q. Was not that the money received by you from Josiali Morris, on the 25th day of 
March, 1867 ?—A. There was about $14,000 of that amount of an execution that I col¬ 
lected of Morris, about $14,000 of the $30,000 that I had collected. 

Q. And that was all of the money that you collected of Morris that you deposited in 
the National Bank at Selma ?—A. On that case, yes, sir. 

Q. What did you do with the balance of that money?—A. Upon an execution, I col¬ 
lected from Morris about, $31,000; $14,500 1 paid to E. E. McCroskey. 

By Mr. Eldridge : 

Q. Was Mr. McCroskey the informer in the case?—A. It was so stated in the decree 
under which I paid the money. 

Witness. I paid about $1,700 to James Q. Smith, leaving about the $14,000, which 
was deposited. 

Q. Do you mean to say that you paid that in money to McCroskey ? 

(Objected to by Judge Busteed on the ground of its being cumulative evidence.) 

Q. Didn’t you, as marshal, sell one hundred and fifty-five bales of cotton, known as 
the Pickett cotton, in the case of the United States vs. The Bank of Louisiana, to Josiali 
Morris, the agent of the claimants, for about $26,000; and if so, when?—A. I did not 
sell any cotton at that time. 

Q. Did you sell about one hundred and fifty-five bales of cotton or any other desig¬ 
nation?—A. No, sir; I did not sell any cotton. 

Q. No cotton, no Bank of Louisiana cotton?—A. No, sir; not to Josiali Morris. 

Q. I am speaking of the Bank of Louisiana cotton, known as the Pickett cotton ?—A. 
I sold one hundred and ninety-two bales of what was known as the Mitchell cotton. 

Q. Didn’t you sell another lot of cotton of one hundred and fifty-five bales ?—A. No, 
sir; I do not recollect to have. 

Q. You say you did sell a lot of one hundred and ninety-two bales, known as the 
Mitchell cotton?—A. Yes, sir. 

Q. Did you make a report of that sale to the court of the one hundred and ninety- 
two bales ?—A. Yes, sir; I made a report to the clerk ; made a statement of the case, 
and took his receipt for the same. It was a regular account-current. 

Q. What was the amount for which you took his receipt? 

(Question not allowed, Mr. Eldridge dissenting from the ruling of the majority.) 

Q. Do you mean that you addressed it to the clerk, or addressed it to the judge?—A. 
It was a report of the sale, but I do not recollect whether it was addressed directly to 
the judge or not. It was an account-current of the transaction, accompanied w T ith the 
vouchers and with the money, on November 24, 1866. 

Q. And have you the clerk’s receipt for that?—A. Yes, sir. 

Q. Did you have in your possession two hundred and seventy-six bales of cotton in 
the case of the United States vs. Tw o hundred and seventy-six bales of cotton claimed 
by Branch & Company?—A. You did not include that in the memorandum you gave 
me. I do not recollect. I know there was a Branch case, but I confined myself to these 
memoranda you gave me. 

Q. Do you recollect that case?—A. No, sir; I have not a distinct recollection about it. 

Q. Do you remember sending or shipping any cotton to New York in that case ?—A. 
No, sir ; I think the Branch cotton was sold here ; I think there was about forty or fifty 
bales of it. 

Q. Did you make a report of that sale to the court?—A. I presume so. You will have 
to give me a memorandum before I can satisfy myself about it. 

Q. In the case of the Weaver lots, at Selma, sold for about $12,000 ; did you make a 
report of the sale in that case ?—A. I did, sir. 

Q. In the case of the school-house lot, at Selma, sold for about $2,500 ; did you make 
a report of that sale ?—A. I made a report of the sale to the clerk long ago. 

Q. Did you pay the money in those cases into the registry of the court or to the 
clerk ?—A. To the clerk; yes, sir. 

Q. In the case of the lot near the Montgomery fair grounds ?—A. Yes, sir; I made a 
report of that sale, and paid the money to the clerk. 

Q. In the case of the iron in the cellar of Barnhart & Rixias, in the city of Selma, 
sold for about $800 ?—A. The iron was sold; return made w ith vouchers; and the money 
paid to the clerk. 

Q. In the case of the leather and iron sold at Pettibone’s warehouse ?—A. The same 
thing was done. 

Q. That was for about a thousand dollars?—A. No ; I think the iron brought $150 ; 
and the leather, perhaps, about $600. 

Q. That would be about $750 ?—A. Something about that. I won’t pretend to state 
the precise amount. 

Q. Did you ever make any report in the case of the one hundred and twenty bales of 
cotton in the Morris & Johnson case, where you collected $3,100?—A. Yes, sir; I made 
a written statement; and I made a return upon the execution. I made a written 
statement, I think, at the request of the district attorney, so as to bring the fact before 
the court, and obtain an order of distribution. 


421 


Q. And the one hundred and fifty-five bales of cotton you never sold?—A. No, sir: I 
never sold one hundred and fifty-five bales of cotton. 

Q. Aoi am cotton in the case ol the United States vs. One hundred and fifty-five bales 
ot cotton ?—A. No, sir. J 

By Mr. Bingham : 

Q. Do ^ou mean to say there was such a case at all?—A. Yes, sir: there was such 
a case. 

Q. But you did not make the sale ?—A. No, sir. 

Q. \\ hat did you do with it?—A. The money was collected under an execution. The 
cotton was stipulated for, and the property subsequently condemned : and execution 
issued against the parties. 

Q. And the money was collected and paid into court ?—A. No, sir ; it was not paid 
into court. 

By Mr. Semple : 

Q. Morris was the claimant in that case ?—A. Yes, sir ; they were the stipulators. 

By Mr. Bingham : 

Q. What was done with it?—A. There was $12,000 paid to James H. Weaver. 

Q. O 11 what account ?—A. I 11 accordance with the order of distribution. 

Q. W as it paid to him as the informer?—A. Yes, sir. 

By Mr. Semple : 

Q. What became of the balance?—A. $1,700 was paid to James Q. Smith; $380 I re¬ 
tained myself for fees; and $10,000 I put in the Bank of Selma to my account as mar¬ 
shal ; and it is there yet. 

Q. Did you sell forty-nine bales of cotton of the Planters’ factory, Nunn & Thomp¬ 
son claimants, in the case of the United States vs. Six hundred bales of cotton ; have 
you any recollection of that ?—A. It is not in the memorandum you gave me, and I have 
not charged my mind with anything except what was in that memorandum. You 
gave me a memerandum of another lot of two hundred and eighty bales. 

Q. Well, did you sell any of that cotton? I am speaking of the case pending in the 
district court here.—A. I could not tell, unless you give me another memorandum of it 
that I could examine. 

Q. Have you any memorandum of the sums received by you as fees in these confisca¬ 
tion cases ? 

(Objected to by Judge Busteed on the ground of immateriality to the issue.) 

Q. Did you make any memorandum of all allowances made and received by you in 
the above cases and all other confiscation cases ?—A. I will state in answer to your memo¬ 
randum, that all the money that I received or earned, or did not receive, I reported in my 
semi-annual returns to the Secretary of the Interior, and it will take me some time to 
go through the copies that I have retained, to ascertain the amount of fees that I re¬ 
ceived while I was marshal. 

By Mr. Bingham : 

Q. Does the record show all the allowances and fees—the records of the court?—A. 
I presume so. Every paper that came to me stated what my fees were. 

By Mr. Smith : 

Q. Do the records show all the moneys that you received, whether for fees, allow¬ 
ances, emoluments, or in any other way coming out of those cases?—A. I presume 
they do. 

Q. Do you know of any other cases than those which have been mentioned, of like 
character ?—A. I do not recollect of any now. 


Montgomery, Alabama, June 3, 1869. 
George Goldtiiwaite sworn and examined. 

By Mr. Semple : 

Question. What is your profession ?—Answer. I am a lawyer. 

Q. Have you ever occupied any judicial position, and if so, what, and for liow long?— 
A. I was on the supreme court bench of the State about six years—from five to six years, 
and I have been upon the circuit bench some years—speaking accurately, from eight 

to ten years. . 

Q. Have you attended any of the courts held by Judge Busteed, in the middle dis¬ 
trict of Alabama, at Montgomery?—A. I have. 

Q. State anything you know of the judicial conduct of Judge Busteed, either towards 
suitors or their counsel.—A. My observation of the judicial conduct of Judge Busteed 
during the terms of the court which he has held here, has been that it was an encroach¬ 
ment,°to a certain extent, upon the rights of attorneys; that it was calculated to pre- 


422 


vent justice being done. But it is impossible for me to go into the particular cases in 
which this occurred, with the exception of one case, and in that I am not certain that 
I can give the title of the case. It was a case which occurred during a night session 
of the court, when I was present. I could not state the cases, the precise language 
used, nor the incidents connected with them, in any other than a general way. I could 
not state specifically and clearly, for instance, in relation to what I considered the ob¬ 
vious leaning of Judge Busteed to particular counsel. For instance, I have repeatedly 
heard Judge Busteed suggest objections to Mr. Smith, at that time the district attor¬ 
ney, where a question had been asked by the opposing counsel, by remarking to Mr. 
Smith, “Do you object to that, Mr. Smith?” “ I do.” “ Objection sustained.” I have 
noticed his repeated interruption of counsel pursuing their argument, the interruption 
of counsel proposing questions to witnesses, in the way in which I have stated, by a 
suggestion to Mr. Smith. I have no recollection that he has ever made a suggestion to 
other counsel. I have repeatedly noticed his charges upon facts, but my memory is 
such that it would be impossible to state the particular cases in which 1 noticed this 
course. 

Q. What was his manner towards counsel in his interruptions of counsel? 

(Objected to by Judge Busteed on the ground that the question was embraced within 
the general question propounded to the witness, and which he should answer in lull. 
The question was allowed by the committee.) 

A. His manner was rude and discourteous. I could only characterize it in that way. 

Q. Did you ever witness such proceedings iu any other court? 

(Question not allowed.) 

Q. Did you ever witness such rude and discourteous conduct on the part of a judge 
to members of the bar in any other court ? 

(Question not allowed.) 

Q. Can you detail any instances showing the character of the rudeness of the judge 
towards counsel?—A. I have already stated that there were interruptions of counsel 
in a rude and discourteous manner. Counsel were directed to take a seat. 1 have re¬ 
peatedly noticed that where counsel asserted his rights to argue, he was interrupted 
and stopped. 

By Mr. Eldridge : 

Q. Can you state the language he used at any time when these interruptions took 
place?—A. The substance, and I think the words were, “ Take your seat, sir,” or equiv¬ 
alent words. I am unable to state the precise language; my memory is very defective, 
except so far as the substance is concerned and the manner. 

By Mr. Semple : 

Q. Idease state what effect this manner and conduct of the judge had upon the coun¬ 
sel in the management of their causes in the court. 

(Question not allowed.) 

Q. Do you remember what was done by counsel on any occasion when this rude and 
discourteous manner was adopted towards them by the judge?—A. They yielded in 
obedience to the court. 

Q. State whether there was anything, and if so, what, in the manner of the counsel 
conducting the causes, to provoke rude and discourteous conduct and language towards 
them from the judge. 

(Objected to by Judge Busteed as not within the scope of the inquiry. Question al¬ 
lowed.) 

A. I have never known any discourteous, rude conduct on the part of any attorney 
at this bar, to Judge Busteed, within my recollection. I have observed upon one or 
two occasions some pertinacity in pressing a question which was denied by Judge Bus¬ 
teed, but nothing more than pertinacity in the assertion of the right. 

By Mr. Eldridge : 

Q. Was this at the time when you say Judge Busteed told them to sit down ?—A. 
Yes, sir; and also iu refusing to hear argument when it was pressed as a right to argue. 

Q. When he told them to be seated it was at the time when the attorneys were per¬ 
tinacious in resisting his ruling ?—A. I will not say in resisting his ruling, but in en¬ 
deavoring to get him to change it. There was no resistance offered. 

By Mr. Semple : 

Q. In your opinion as a lawyer, were the questions which they proposed, or any of 
them, proper to be put, and such as counsel should have insisted upon putting? 

(Objected to by Judge Busteed. Question not allowed.) 

Q. Do you remember any questions which were propounded and the circumstances 
under which they were propounded, and the argument of counsel in relation thereto?— 
A. I do not. 

Q. What was the manner of the judge towards James Q. Smith, the United States 


423 


distiict attorney ? A. Upon immaterial matters lie was in the habit of snubbing Smith 
occasionally , but I never knew him to snub him in important ones. 

hb 1)0 you lemember what w r as the occasion stated by the judge of his ordering a 
non-smt or withdrawing a juror in the case of the United States vs. Josiali Morris and 
J. r. Johnson? 

(Objected to by Judge Busteed as wholly immaterial. The committee allowed the 
question to be put.) 

A. I was in court at the time, and it made a strong impression upon my mind. There 
w^as an objection taken at the close of the case,, that the evidence did not correspond 
"\\ itli the complaint, as laid in tlie information—that it did not correspond 'with the 
complaint in the mark or description of the cotton for which the action was brought. 
It my memory is correct—and I think it is—the mark upon the cotton was T. IT. W?, or 
T. M. W., or something of that kind, or Watts. It was either the initials of the two 
first names, and perhaps the whole, or the initial of the last name ; and the objection 
that was taken was that either one of the initial letters, or one of the names, was proved 
not as laid in the complaint. Upon that occasion the objection was sustained sub¬ 
stantially by withdrawing a juror, a practice that we knew nothing about here. I only 
mention that the objection was sustained. 

Q. Do you remember whether the district attorney, who was prosecuting the suit for 
the United States, offered to amend the complaint by putting in the description so as to 
make it correspond with the proof ?—A. My recollection is that he did. 

Q. Mas that an action of trover?—A. That was an action of trover. 

Q. W as the one hundred and twenty bales of cotton, the subject-matter of this suit, 
the same cotton which was the subject-matter of the proceedings of information which 
had lately been reversed in the Supreme Court of the United States?—A. It was. 

Q. Were you in court when anything was said by Judge Busteed to the members of 
the bar in relation to the necessity of bringing the papers of the court into court by a 
subpoena duces tecum to the clerk ?—A. I was. 

Q. W lien was it ?—A. It was during the present term of this court here, last week. 

Q. M ill you state what it was that was said ?—A. The case was called and one of the 
counsel, the counsel for the plaintiff, did not have his papers in court. 

By Mr. Eldridge : 

Q. What do you mean by his papers—his office copies, or copies of the records ?—A. 
Not the copies of the original papers; the original papers themselves; the files of the 
court. 

Witness. Judge Busteed stated that that was no ground for delay—in substance—I 
do not use his precise words ; that it was the duty of the counsel, if necessary, to have 
the papers brought in by a subpoena duces tecum. The judge expressed some doubt 
about it and submitted the question, to a certain extent, to the bar to give their views 
in relation to it, in regard to the legal question which he asserted, and some gentlemen 
did. Judge Busteed stated that he had been called upon to do it in the New York 
court. 

By Judge Busteed : 

Q. Did some of the members of the bar do so ?—A. I think they did. 

By Mr. Semple : * 

Q. Do you remember whether you rose, after the close of the day’s proceedings, and 
proceeded to address the court on that subject, and the court directed you to suspend 
further remark ; that he would dispose of it to-morrow morning ?—A. Yes; that he 
would hear me upon it in the morning. He requested me to suspend my remarks 
until the morning. 

Q. Do you know whether he made any statement in court next morning in relation 
to it ?—A. Yes, sir. 

Q. What was it ?—A. Well, it was a statement that wound up by adopting a rule 
which obviated the necessity of the issuing of a subpoena duces tecum , by requiring the 
clerk to have his papers in court. That was about the substance of it. 

Q. Do you know anything of the relations between Judge Busteed, Mr. James Q. 
Smith, and Mr. John Hardy ? and if so, state what the relations are or were during the 
time they were in office here. 

(Objected to by Judge Busteed as being cumulative. Objection sustained.) 

Q. Do you know of any improper intimacy between the judge and James Q. Smith 
and John Hardy, or either of them; and if so, what ?—A. I cannot state that I know 
of any improper intimacy, so far as Mr. Smith is concerned; but I will state a particu¬ 
lar transaction that struck me as being improper, and as indicating a degree of inti¬ 
macy ; but it is for the court to pronounce upon it. The fact was this : There was a 
little lot of cotton—some thirty bags—levied upon or seized by John Hardy. I do not 
recollect how it came into his possession; but it was the property of the Central Bank, 
of which Mr. Knox is president. Judge Busteed made an order directing the return of 
it by Hardy to the bank, or something equivalent to it. 1 think that order was made 


424 


in court, and the day after, or perhaps at that time, there was some conversation about 
it. The cotton was worth between three and four thousand dollars, and Hardy had 
brought in a bill of costs for some two thousand five hundred dollars. I think this oc¬ 
curred in the court-room. Judge Busteed observed: 11 John, you rascal, you ought not 
to have done that; you ought not to have taken that cotton/’ or some equivalent words. 
That is the only instance that I remember. 

Q. Where was this conversation ?—A. I would not be certain whether it was in the 
court-room or in the front room of Mr. Smith’s office; but it was in the court-room, I 
think; and it was in relation to that cotton which had been the subject of judicial 
action. 

By Mr. Eldkidge : 

Q. When was that ?—A. My recollection is that it was the second or third court that 
Judge Busteed held here; I cannot speak with certainty. 

Q. What year; what time ?—A. I think it was in the fall of 1866 or the spring of 
1867; but I am by no means positive. I only recollect the fact, and not the time. 

By Judge Busteed: 

Q. Where were you born ?—A. In Boston, Massachusetts, or near Boston. 

Q. How long have you lived in Alabama?—A. Since 1826. 

Q. You used to be the law partner of Henry C. Semple here, used you not, sir?—A. 
Yes, sir. 

Q. And your son is now his law partner?—A. No, sir. 

Q. Has been, hasn’t he ?—A. Yes, sir; his name was in the firm, but he was not 
interested in the profits. He, in reality, received a salary. 

Q. You were the law partner of Henry C. Semple when Mott of New York retained 
the services of your law firm, were you not ?—A. I do not think I was, sir. 

Q. When did your law partnership with Semple cease?—A. When I went upon the 
bench. 

Q. When was that, if you please ?—A. Well, sir, I cannot tell you at this moment. 
It was in 1867; and I think it was in August, 1867, that I went upon the bench. 

Q. Do you know of a lawsuit commenced by the firm of Bice, Semple & Goldtliwait, 
for alleged corruption and bribery against Mott, Judge Busteed, and Kufus F. An¬ 
drews?—A. Yes, sir; I know of it. 

Q. Did you advise that suit'?—A. No, sir; I did not know of it until after it was 
commenced. Was surprised at its being commenced somewhat. 

Q. How long, in all, have you sat upon the bench—both on the supreme court bench 
and on the circuit court bench ?—A. From twelve to fourteen years in all. 

Q. James Q. Smith, formerly district attorney of the United States for the middle 
district of Alabama, is now occupying the same bench upon which you served ?—A. 
He is. 

Q. And elected to it by the people of this State?—A. Yes; by the people of this 
circuit. 

Q. Have you anything, personally, to complain of the manner of Judge Busteed to 
you; and if so, in what case?—A. I have nothing to complain of Judge Busteed, unless 
it was a little matter that occurred here the other day. 

Q. About not hearing you in that motion ?—A. Yes; I do not think I ever appeared 
before you except in that case, except for a motion or so. 

Q. The other day did you ask to be heard, sir?—A. I did. 

Q. In the morning—I mean the next day?—A. Oh, no; I refer to the university 
case, not to that case. 

Q. In the case of Sullivan and Bandolph ?—A. Yes, sir. 

Q. Was I rude to you in that case?—A. No; at least I did not so consider it. 

Q. Was I ever personally discourteous to you, Judge Goldtliwait, anywhere?—A. I 
have no knowledge that you ever were, either in your court or anywhere else. 

Q. The cases in which you say Judge Busteed suggested to James Q. Smith, the 
then district attorney for the middle district of Alabama, questions of objection, did 
those cases not involve the interests of the United States ?—A. Generally they did; 
and they may have in all cases. I do not know that they did in all cases. 

Q. Can you state a single case, inter private parties, in which Judge Busteed ever 
gave such a suggestion to James Q. Smith ? If so, state it.—A. I have no recollection 
at this time of any case between private parties that you ever made the suggestion 
that I have referred to. 

Q. Who were those pertinacious counsel that insisted upon arguing questions after 
the judge had decided them ? Give us their names.—A. The counsel to whom I re¬ 
ferred was Judge Martin in some cases. 

Q. Abram Martin do you mean ?—A. Yes, sir; and Judge Samuel F. Bice. I do not 
recollect any other instances. 

Q. During your administration of the judicial office, if you had decided a question 
and announced your decision to the attorneys in the cause interested in the question, 
and the attorney had insisted upon arguing it to you, and was standing up addressing 


425 


> ou, would you ha\e required him to take a seat?—A. It would depend upon circum¬ 
stances. My rule is always to hear any argument against the conclusion to which I 
Have arrived, provided I have time during the session of the court. In that case, I 
never stop counsel who is opposing me ; he may argue as long as he pleases. 

(y. suppose that upou the question which he was arguing you had no manner of 
< ou >t as to how } on must decide it; would you in that case allow the counsel to argiie 
as long as he pleased, and so take up the time of the court ?—A. It has been repeatedly 
my misfortune to differ with counsel, and I always announced to them that I did not 
think any argument they could use would change the conclusion to which I had ar- 
irved; hut that it was their right to argue it, nevertheless, and that it was proper to 
assert that right. 1 1 


By Mr. Lougiiridge : 

Q. But suppose you have once decided and announced your decision; would you 
allow argument then?—A. No; not when the full argument has been made. I do not 
recollect any case where I have decided, and given my decision, where there has ever 
been any application again made to argue the case. But if the counsel were to insist 
upon it, and I had time, I should certainly hear it if they could offer any new sug¬ 
gestions. 


By Judge Busteed : 

Q. It you had not time, what would you do?—A. I might hear it then, or might not; 
it would depend upon the view that struck me, and of course I could not say what 
course I should pursue. 

Q. The manner of Judge Busteed in helping James Q. Smith was confined to him?— 
A. Well, mainly confined to him ; perhaps entirely. I do not at this time recall it to 
any other person. I did remark it so far as he was concerned. 

Q. Do you know whether the bar of Montgomery—the leading members of it, such 
as George Goldthwaite, Thomas Watts, John Elmore, Samuel F. Bice, and men of that 
ilk-—were of opinion that James Q. Smith was not a good lawyer, or competent to 
defend the interests of the United States in his own court?—A. I think they were, sir. 

Q. And don’t you know that they expressed that opinion to the judge?—A. I cannot 
speak as to that. I do not know that. 

Q. Do you know whether any of those named ever expressed that opinion to the 
judge—whether George Goldthwaite ever did?—A. I have a recollection of your pro¬ 
nouncing him a fool, I think, to me; and I assented to it; but I did not go any further 
than that. I yielded. 

Q. You yielded, and very implicitly assented?—A. I agreed with the court on that 
question. 

Q. Implicitly or otherwise; did you qualify it?—A. I do not think I qualified it 
at all. 

Q. Now, during your administration of the judicial office, if a district attorney were 
to appear before you whom you regarded as less than the whole bar, or than any other 
member of it, and as a poor lawyer, and as unfit to protect the interests of the country, 
would you have felt it incumbent upon you as the presiding judge to have aided, by 
way of suggestion, that district attorney?—A. If the district attorney was, through 
omission or want of recollection, to omit to prove any essential fact, I think I should 
suggest it to him. I think I should deem it my duty to do so. But as to suggesting 
to him forms of interrogatories, or suggesting objections to testimony, I should not. 

By Mr. Lougiiridge : 

Q. Suppose an improper question was put, and the jury and the district attorney 
didn’t seem to know that it was improper; should you think it improper for you to 
suggest to the witness?—A. If it called perhaps for improper evidence or illegal 
testimony, it is likely that I might; if it called for testimony which would be admis¬ 
sible, I should not. 

By Judge Busteed : 

Q. When was this—as to time—that the conversation between the judge and Hardy 
took place in relation to the thirty lots of cotton?—A. I can not locate the time. It 
was at the same court when the motion was made. But my memory is particularly 
defective as to dates. 

Q. Can you give the year?—A. It was in 1866 or 1867; I really cannot say which. I 
recollect the conversation perfectly; as well as if it occurred yesterday; but the time 
I do not recollect. 

Q. You stated in answer to the question whether you know of any improper intimacy 
between Judge Busteed and Hardy, that the improper intimacy you knew of between 
Hardy and the judge took place on that occasion you have stated. Have you stated 
all the facts upon which you based your conclusion of improper intimacy?—A. I think 
I have. I have no recollection of any other fact. 


426 


Q. Did the improper intimacy, in your opinion, consist in my calling Hardy a rascal, 
and in the assertion that lie ought not to have taken that cotton ?—A. No, not exactly. 
Hardy had brought in a bill, as I say. The motion was granted to restore the cotton, 
and the costs came very near consuming the entire amount of the cotton. The fact 
was brought to your notice—the amount of the costs—in some way, either in conver¬ 
sation or in some other way, in the room to which I referred; and then you remarked 
in a jocular tone to Hardy that he did wrong in taking the cotton, using the precise 
phraseology of 11 John, you rascal,” in the jocular way, as I have stated. 

Q. Was that bill of costs ever presented to me judicially for taxation ?—A. I do not 
know whether it was or not. Ido not think it was. My best recollection is that it 
was not. I had no means of ascertaining the facts; the court was about to close. 

By Mr. Eldridge : 

Q. What was it that brought out these facts ?—A. It was the conversation in relation 
to the matter. The amount of costs was stated, not being a matter of judicial action, 
and then it was that the judge made the remark that I have referred to. 

Q. Was the judge asked to act upon that bill of costs in any way ?—A. No, sir ; lie 

was not. There were facts stated about it, ayul we had no means of ascertaining the 

facts, except the general idea. We had no proof and no means of obtaining proof 

about it during that term of court. There was no motion in it that I remember. I 
© 

know there was not. 

Q. How was it brought to the attention of the judge?—A. We were talking about 
it down stairs. I am not certain that the court was not making orders in the front 
room of Smith’s office; and we were talking, as judges will, at chambers with attorneys, 
and Hardy was there. 

By Judge Busteed: 

Q. Were you the attorney for the bank in this case ?—A. Yes, sir. 

Q. Did you ever make a motion at any subsequent term of the court to re-tax that 
bill of costs ?—A. I never did. 

Q. Coming to the present term of the court, and to this assertion of wliat the judge said 
about bringing the records of his court into the court-room, let me ask you whether 
you will name the lawyer who, when the judge invited the expression of opinion upon 
the subject of his being right or wrong, spoke on it ?—A. I do not recollect the gentle¬ 
man who did. 

Q. Will you say that any one did?—A. I will not say positively that any one did. 

Q. And did you, on that day, speak of it in court?—A. Yes; after you had signified 
your intention, and before the adjournment of the court, I rose and requested you to 
delay. I did not wish to interrupt the proceedings of the court. Judge Busteed had 
invited any gentlemen to give their views to the court in relation to the course he had 
taken, as regards the subpoena duces tecum. My recollection is that some gentleman 
did offer some remarks, but in that I may be mistaken. Judge Busteed went on with 
the proceedings, and I had determined to state some reasons against the course that I 
supposed was intended to be adopted by Judge Busteed, which would require the at¬ 
torneys in the suit, in every case which they had, to subpoena the clerk, to bring in the 
original papers belonging to the court. What I did was this: I requested him to post¬ 
pone the adjournment of the court for a very few minutes. He then stated, “ I will 
hear you in the morning.” 

Q. Had not the hour tor adjournment then arrived ?—A. I think you said it had, and 
that you pulled out your watch. 

Q. The next morning, on the opening of the court, did Judge Busteed make an order 
upon that subject?—A. Judge Busteed made an order upon that subject. 

Q. In the hearing of the bar ?—A. In the hearing of the bar. 

Q. Did he read it himself before handing the written order to the clerk?—A. I think 
he did. 

Q. Was that order in these words: “ Ordered, that during the sittings of the court 
nisi prim, at the opening thereof, each day, the clerk bring from the files of his office 
into court the papers in all common cases which are upon the docket, which are being 
called ” ?—A. That is my recollection of the paper. 

Q. Have you subscribed any money to Semple toward procuring the impeachment of 
Judge Busteed, on the charges made by Semple and Smith?—A. I have subscribed 
none whatever. I gave twenty dollars towards it some months ago. 

Q. Have you promised to give any more?—A. No, sir. 

Q. Do you expect to give any more ?—A. I should certainly have given it had I been 
asked for it. 

Q. Since these impeachment proceedings have been initiated by Semple and Smith 
haven’t you had conversations with members of the bar looking to the successorship 
of Judge Busteed?—A. Not one, that I remember, sir. 

Q. Will you say that no such conversations have been had by you, Judge Gold- 
thwaite? A. I have no recollection of it. I do recollect of one gentleman simply ask- 


427 


iiig me whether I would take the position, and hut one gentleman, to whom I had never 
addressed fifty words in my life. 

Q. Will you have the kindness to tell us the name of this gentleman ?—A. It was 
Tom Hamilton, of Mobile. & 

Q. He is an attorney-at-law there ?—A. Yes, sir. 

Q. Brother of Peter Hamilton, you mean ?—A. Yes, sir. 

Q. No lawyer of the Montgomery bar and yourselt ever talked on tit at subject?—A. 
I have no recollection of any lawyer talking with me on that subject. 

Q. Did you with him?—A. Nor I with him. 

Q. Will you say you have not had such conversations with the members of the Mout- 
gomery bar?—A. 1 should have recollected it if I had. I never had; and I did think, 
however much I might have appreciated the office, that there would not be the slight¬ 
est possibility of my gaining it. 1 dismissed it at once, when Hamilton spoke to me 
about it, by saying: “It is useless to talk about that.” And I have no recollection at 
this time of ever speaking about it. 

Q. Prior to the year 18(50, had you sworn more than once to support the Constitution 
of the United States of America?—A. I think I had taken that oath on two or three 
occasions. I took it, I know, when I was judge—each time when I was elected. I took 
it twice before the rebellion. I took it once as a supreme court judge, once as a circuit 
court judge, and once as an attorney-at-law. 

Q. How old were you when you last took that oath ?—A. When I last took it was 
since the rebellion. 

Q. I mean before 1800 ?—A. I had arrived at years of discretion. I took the oath 
that is required of all judicial officers of this State. 

Q. Subsequently to i860, and to the taking of those oaths, did you break them?— 
A. Well, sir, I never thought I did. 

Q. Would you consider it perjury to break them?—A. I think I should, sir. 

Q. Did you aid, or countenance, or support the rebellion against the United States 
alter its incipiency ?—A. 1 did. 

Q. Did you seek for a pardon for your participation in treason against the United 
States during the rebellion, and did you get a pardon and accept it ?—A. Yes, sir. 

By Mr. Bingham : 

Q. Do you wish to be understood as saying that it was the expressed opinion of the 
bar of Montgomery, that Mr. Smith, the district attorney of the United States, was 
incompetent for the duties of his office, before his removal, and while he was exercising 
the duties of it ?—A. Yes, sir. I think that was the case so far as expression was given 
to the sentiment. 

Q. Do you know whether the expression was given generally or not before his 
removal ?—A. I think it was generally given. That is my recollection. 

By Mr. Loughridge : 

Q. Have you ever noticed any difficulty in Judge Busteed’s court about attorneys 
getting fair bills of exceptions ?—A. I have heard so; but I never applied to Judge 
Busteed for a bill of exceptions personally. 

Q. Have you ever noticed it ?—A. It does not fall within my personal knowledge; 
but I have heard a good deal of talk about it. 

By Judge Busteed : 

Q. Don’t you know that at this term of the court, you yourself applied for a bill of 
exceptions?—A. Yes, sir. 

Q. Had you any difficulty in getting it?—A. Well, I have not got it yet. 

Q. Had you any difficulty in getting what you applied for?—A. None whatever. It 
was only the notes of the judge and the charges in writing that were- 

Q. Have you returned him those notes yet ?—A. I have; but I have not returned the 
other papers. 

By Mr. Semple : 

Q. Were you elected at the first election held in the State of Alabama after the occu¬ 
pation of tlie State by the United States ? 

(Objected to by Judge Busteed, as wholly immaterial to the issue. Objection over¬ 
ruled.) 

A. Yes ; I was elected at the first election held. 

Q. Endeavor to refresh your recollection, and say whether that election was held in 
May, 1866 ?—A. I think it was. 

Q. It was after your election and qualification that your partnership with Mr. 

Semple ceased ?—A. Yes, sir. _ 

Q. Were your disabilities relieved by Congress ?—A. They were, so I understood. 

Q. Were the points, or any of them, which the counsel were attempting to argue 
when the counsel was ordered to be seated, ruled by the judge without allowing 



428 


opportunity of argument, in the cases referred to by you ?—A. In many cases they 
were; I think in all. 

Q. Were those points plainly against the counsel making them, or were they points 
which, in your opinion as a lawyer, required argument? 

(Question not allowed.) 

Witness. I wish to correct a former statement thus far: I recollect some of the 
points raised. In one case exceptive allegations were drawn up by myself. One was 
in relation to there being no seizure. That was the main point about that case. I drew 
up exceptive allegations in the case to the libel of information that had been tiled. In 
that case the exceptive allegations were presented and argued by Judge Rice. That 
was one case in which these frequent interruptions took place. They were argued, 
but the interruptions were of the character I have already spoken of. 

Q. Were those exceptive allegations, or the ones in which you were interrupted in 
the argument, actually sustained by the Supreme Court of the United States ?—A. My 
recollection is they were. 

By Judge Busteed : 

Q. The question of the right to a trial by jury was a question made in these cases of 
information against property used for the rebellion, was it not ?—A. Yes. sir. 

Q. Was that question allowed to be fully argued by the judge ?—A. My recollection 
is that it was. 

Q. Wasn’t it argued by several of the best lawyers in Montgomery before me, and so 
allowed ?— A. That is my recollection—that you put no limitation upon the argument 
so far as that matter is concerned. 

Q. As to time, or anything else ?—A. I do not think you did. 

Q. Don’t you know that it has been the custom of Judge Busteed to ask counsel, 
during their arguments, questions, and, in addition, to ask them whether the interrup¬ 
tion annoyed them or interfered with the thread of their argument ?—A. I do not rec¬ 
ollect any instance in which you put the last question. I recollect frequent instances 
of your asking questions, though I cannot give the particular cases. 

Q. Aud you never recollect my saying to the counsel, that if I annoyed them I would 
not ask it ?—A. I have no recollection of it. 

Q. Within the last week, and during your arguments in the University case, didn’t 
Judge Busteed ask you questions, and, at the same time, ask you whether it annoyed 
you to be interrupted ?—A. I recollect the first, but not the last. 

Q. Did it annoy you, in that case, to be asked questions by Judge Busteed?—A. 
No, sir. 


Montgomery, Alabama, June 3, 18G9. 

Edmund W. Pettus sworn and examined. 

By Mr. Smith : 

Question. Have you been on the bench in this State ?—Answer. Yes, sir; I was on 
the circuit bench. 

Q. How long ?—A. About four years and a half. 

Q. Are you a practicing lawyer now in the district court of the middle district of 
Alabama?—A. Yes, sir; lam. 

Q. Have you attended the courts pretty regularly ?—A. Yes, sir; I have attended all 
the regular terms of the court held at this place since the war. 

Q. Where do you reside ?—A. I live in Selma, Dallas County, Alabama. 

Q. Do you remember the trial of a case known as the Weaver case ?—A. I know a 
case in which the Weaver estate was interested. The style of the case was u The United 
States vs. Thirty acres of land in the city of Selma.” It is commonly called the Weaver 
case, but that is not the name of the case in court. 

Q. Who was claimant?—A. The administrators and heirs of P. J. Weaver were the 
claimants. 

Q. State, if you please, what took place on the trial of that case in reference to time 
being given—what was given, what was done. 

(Objected to by Judge Busteed. Objection overruled.) 

A. The case was tried, according to my best recollection, on the 15th of December, 
1866. It involved the title to thirty acres, apparently, but eight acres in fact, in the 
city of Selma. The judge refused to allow myself, as counsel, to argue the cause, on 
the ground, as I understood, of want of time. ' There was a question in the case as to 
whether Weaver, the original owner of the land, who was then dead, had accepted his 
pardon before he died. The counsel insisted on arguing the cause, but the judge de¬ 
clined, for want ot time, to hear the argument, and told counsel they could have thirty 
days within which to lile a written argument and to produce this evidence of the accept¬ 
ance of the pardon by Weaver. The record, if I am allowed to speak of it, shows- 

(Objected to by Judge Busteed.) 

Q. Did you ever have an opportunity to file either an argument or the evidence in 



429 


the case t—A. The case was decided on the 28th day of December. I had that much 
time. I mean to say that that is the date of the decree. 

Q. The decree was against your client, was it ? 

(Objected to by Judge Busteed. Objection sustained.) 

bethel the propeity was actually sold by the marshal.—A. The property 

as sold. I lie facts that I know about it are these : I was present and saw part of it 
being sold ; and perhaps I state too fully when I say the property was sold. I know a 
part of it was sold. I saw the sale going on, but I did not stay to see it concluded, and 
1 know nothing as to whether it was all sold. 

Q. Have you ever examined to see if you could find any return of that sale in the 
clerk’s office ?—A. Yes, sir; I have. 

. Q- Ihive you over been able to find it?—A. I do not mean to say that I have exam¬ 
ined the records and papers in the office myself. I have applied for it, and I have ex¬ 
amined the minutes of the court, and the docket of the court, and I have endeavored 
to obtain the report of the sale from the clerk, and was answered that there was no re¬ 
port in the office. I did not examine the papers, because that is not allowed. I applied 
for it to the clerk. 1 

Q. Have you ever found any decree of the court in reference to that sale?—A. Yes, 
sir. 

Q. What is it ? 

(Objected to by Judge Busteed. Objection sustained.) 

Q. What was that property worth ? 

(Objected to by Judge Busteed. Objection overruled.) 

A. I think the property wa£ worth about .$15,000 at that time. 

Q. Did you have any information from the time the thirty days was given up to the 
time the decree was rendered, that it was to be rendered within the thirty days?—A. I 
had none. The first I learned of the decree was the marshal’s advertisement of the 
sale. 

Q. How far is Selma from Montgomery ?—A. It is about fifty miles by land, and 
somewhere iu the neighborhood of one hundred by water. 

Q. The road by land is a dirt road, or railroad ?—A. It is a dirt road. 

By Mr. Eldridge : 

Q. Before you understood the decree to be rendered, had you filed your argument 
and the notification of the acceptance of the pardon?—A. I had filed no argument. 
My remembrance is that I had sent the acceptance to Judge Busteed at Mobile, and I 
think it was before the decree was rendered. 

By Judge Busteed : 

Q. Sent it by mail to me?—A. No, sir. I sent it by mail to Mr. Joel W. Jones, of 
Mobile, of the firm of John A. Winston &. Company. 

Q. To be delivered to me ?—A. Yes, sir. 

By Mr. Smith : 

Q. Was the want of that paper the point of difficulty in the case ?—A. I cannot say 
that it was. 

Q. Were there other questions in the case ?—A. Yes, sir. 

Q. Did you desire to argue these other questions?—A. Yes, sir; we desired to argue 
them, and asked leave to argue them. 

Q. In your opinion as counsel, were they important to be argued ?—A. Yes, sir; as I 
thought. 

Q. Did you deem them proper to be argued ?—A. Yes ; we thought they were new 
questions arising from the results of the war, and the relations of the property of this 
country. It was a case of confiscation, and I desired to argue the question as to the 
influence of a pardon in the first place, and the effect of the death of the owner before 
the decree, in the next place. Those were the principal questions, as I considered 
them, in the cause. 

Q. State whether or not you demanded any trial by jury in that cause.—A. Yes, sir; 
I did demand a trial by jury. 

Q. State whether it was allowed or refused.—A. It was refused. In reference to the 
questions involved in the cause, it is proper that I should say that in that particular 
case the proof showed a deed from the original owner to the Confederate States; and 
another one of the questions which we desired to argue was, whether the Confederate 
States was an existing corporation which could take title. 

Q. You maintained the affirmative or negative of that ?—A. We desired to argue, on 
the authorities, that the Confederate States had no legal existence and could not take 
title, and therefore that no title could pass by deed. 

By Mr. Eldridge : 

Q. Do you know whether the same questions had been argued before Judge Busteed 


430 


during that term of court, or during any term ?—A. Some of them had. The question 
of a trial by jury had been argued at length. 

Q. And he had passed upon that question ?—A. Yes, sir; he had. 

Q. Had those other questions, to your knowledge, been argued before him, and passed 
upon by him ?—A. I do not remember that there was any question ever argued before 
him up to that time involving the question as to whether the Confederate States could 
take title by deed, but I cannot now state whether the other two questions had then 
been argued or not. I am inclined to think that the question had been decided by him 
in some instances that the pardon of an individual relieved the property from confisca¬ 
tion - 

By Mr. Smith : 

Q. Had the question as to whether the acceptance of a pardon and the mailing of 
that acceptance were sufficient, before been argued?—A. No, sir; I think not. The 
ordinary way in which the acceptance was proved, was by a certificate of the secretary 
of state. 

Q. State whether that was a question in the case.—A. Yes, sir; that was a question 
in the case, and a question on which the judge’s mind did not seem to be fully made 
up, by his allowing us to prove it in the different form in which we did prove it. 

Q. If it had been decided that the mailing of the acceptance was sufficient evidence 
of the acceptance, or if it had been decided that the Confederate States were not an exist¬ 
ing corporation or body that could take title by deed, what must have been the result 
in your case ? 

(Objected to by Judge Busteed. Objection sustained.) 

Q. State what you know of the general judicial conduct and bearing of Judge Bus¬ 
teed in his court.—A. Toward me individually Judge Busteed has never been discour¬ 
teous in his court. I witnessed the trial of several cases in which it would not be proper, 
I suppose, for me to characterize the action of the judge. 

Mr. Bingham. State what he did ; how he conducted himself. 

Witness. The first case, as I now remember it, in the order of time, was the case 
against certain property. I do not. remember the amount of it. It was cotton, though. 
James Fountain was the claimant. I do not. remember the style of the case on the 
docket. Judge Abel Martin was the counsel in the case. The judge on that occasion 
in part took the management of the prosecution, when the testimony for the defense 
was being heard, by objecting to the questions asked. I do not remember distinctly 
the questions, but I remember one which was propounded to the claimant himself, and 
that was, Who was the owner of the cotton ? I mean that was the substance of the 
question. I do not remember the identical words. At that point of the examination the 
judge either objected himself or sustained the counsel’s objection on the other side. From 
that time, for several minutes, Judge Martin sought all the while to prove by this witness 
who was the owner of that cotton, and lie framed his questions in various ways. The 
judge in a very peremptory manner overruled the questions that he asked, and Judge 
Martin attempted to explain his reasons for wanting to prove this matter, and the judge 
did not allow it to be done. I think the style of the ruling was, u Objection sustained.” 
The manner was very harsh. Judge Martin was an old man, and was conducting him¬ 
self, as far as I could see or understand, in a respectful manner. This thing continued 
for some time—I reckon for an hour. I cannot describe it in minute detail, because 
my memory is not sufficient. I do not pretend to recollect the minute facts as they 
occurred. 

Q. State any other cases. State whether Judge Busteed ordered Judge Martin to 
take his seat; and if so, in what manner.—A. I have no remembrance on that question. 
I do not remember any such a scene in that particular case. 

Q. State any other matter that you recollect, either in the Josiah Morris case, or the 
Williamson case, or any other case.—A. I heard the Williamson case tried; that is, I 
mean I heard a case tried, in which a man named Williamson was claimant. I do not 
remember the style of that case. It was against some cotton, and some corn sacks ; but 
I do not remember the particular style of the case. Watts and Troy were attorneys 
for the claimant. The same thing occurred in that case that I mentioned in the other, 
in reference to the judge assuming in part the management of the cause. 

Q. Do you mean to say that lie assumed the management of that cause on one side, 
or on both sides ?—A. Well, it was on both sides, in my opinion. 

By Judge Busteed : 

Q. These cases were tried without a jury ?—A. Yes, sir, they were. What I mean by 
the management of a case is the making objections himself, without waiting for coun¬ 
sel on the opposite side. That is only part of the thing. In various instances, on that 
occasion, Mr. Watts tried to explain to the judge the reasons why certain questions 
were asked—the pertinency of the evidence. On several occasions iie was not allowed 
to do so; but the judge in a very peremptory manner said, in substance—1 cannot state 
the exact words, “Put your question, sir;” and the scene continued for a long time, 
the attorney trying to explain, and the judge requiring him to put his question; and 


431 


^ - e < l uestl( ? n was Ppt> 111 vei 7 many instances—in several instances—he said, 
Objection sustained,” ‘without any objection being made. There may have been 
o ijections, and I think there were objections to questions of that class, preceding his 
lining. Alter the case had proceeded some time, Mr. Troy got up and attempted to show 
the 1 eason why he thought a question ought to be allowed, or rather, why the evidence 
ought to be allowed; and the judge stamped his toot on the bench, on the floor of his 
stand, and said, in a very imperious manner, “ Take your seat, sir, and keep it.” That 
v as the substance of what the judge said ; 1 may not give the identical words. 

Q* \\ hat was the manner of Mr. Troy at that time?—A. There was no discourteous 
language used towards the judge by Mr. Troy. He was cool in manner, but he evinced a 
determination to explain what he desired to have done. 

By Mr. Eldridge : 

Q. In those questions that he overruled, as you have stated, peremptorily, had the same 
question been allowed by him to be argued in the case previously?—A. I think not. 
Not in that particular case. It is a long time ago, and I cannot pretend to give the 
exact details of the language on any of those occasions. I took no notes, and 1 never 
expected to be questioned in reference to the subject. I witnessed the trial of the 
Morris case, as it is called. I do not remember the name of that case, but it is against 
certain cotton, and Josiah Morris, or Morris and Johnson. Josiah Morris was one of the 
parties in interest. 

[The committee decided not to allow of further testimony on this point, it having 
been related at length by previous witnesses.] 

• By Mr. Smith : 

Q. If any other facts of a peculiar character in reference to the actions or conduct of 
the judge struck you in the course of your observation, state them. 

(Objected to by Judge Busteed. Objection sustained, and the witness directed to 
resume his statement in answer to the general question propounded.) 

A. Judge Busteed tried a case at the same term of the court—that is, I mean in 
December, 1866—the November term, as it is called, in which the style of the case was 
“ The United States vs. Sixty-three Bales of Cotton and John Weedon.” He refused to 
allow counsel to argue the cause. I may say, however, one branch of the case had been 
argued, and that was some of the exceptive allegations. The cause was taken up at one 
day of the term and partly tried, and adjourned over until several days thereafter. It 
was tried, according to the best of my recollection, on the 19th day of December. The 
exceptive allegations were argued by counsel, and passed on by the court; I speak of 
the testimony. I do not mean to say that there was no argument either on the main 
cause ; there was argument in part. There was argument on questions arising in the 
case during its progress. The case was tried on the 19th, and the court adjourned on 
the 20th of December, according to the best of my recollection. A bill of exceptions 
was prepared, but was not tendered to the judge until after the announcement that the 
court had adjourned without day. The cause was tried late one evening, and on the 
next evening, late, the judge, without giving,-so far as I heard, any previous notice, 
adjourned the court, and adjourned it without day. The bill of exceptions was prepared 
from the judge’s minutes, and, so far as I remember, there were few, if any, variations 
from the minutes as kept by him in the bill of exceptions. He took the bill of excep¬ 
tions, saying, if it was correct he would sign it; that he did not have time to examine 
it then, but would take it with him to Mobile, and if correct, would sign it. The judge 
refused to sign the bill of exceptions afterward, because, he said, bills of exceptions 
were not allowed in admiralty cases, and that was not the appropriate remedy in his 
judgment; and on the further ground that the bill was not tendered to him in term 
time, and that the bill could not be signed in vacation without the consent of the oppos¬ 
ing counsel. He returned the bill of exceptions, through the district attorney, to me, 
with some corrections, but not signed, on that ground. 

Q. Was the business of the court through when the adjournment took place ?—A. No, 
sir ; I mean to say that the causes were not all called or tried. But the court adjourned, 
I suppose, on account of business somewhere else. 

Q. Had there been any previous notice that the court would adjourn sine die? —A. 
Not so far as I know; I never heard any, and I was in attendance in the court all the 
while. I never heard any intimation that the court would adjourn at that time. 

Q. Was it or not a matter of surprise when the adjournment was announced to the 
bar ? 

(Objected to by Judge Busteed as wholly immaterial. Objection sustained.) 

Q. Had it been possible to tender the bill of exceptions before the adjournment took 
place? 

(Objected to by Judge Busteed. Objection overruled.) 

A. i do not mean to say that the bill of exceptions was fully prepared before the 
adjournment ; I mean to say that the bill of exceptions was being prepared, and nearly 
completed, from the judge’s minutes. The judge kept a memoranda which he called 


432 


the record of the case. He had a memorandum hook, and he required me to write my 
bill of exceptions from that. 

By Judge Busteed : 

Q. I required you to do that ?—A. You said that it must conform exactly to that book, 
and I had no other way to state it except from the book, aud you were kind enough to 
loan me the book. 

By Mr. Eldridge : 

Q. Did the judge know you were preparing the bill of exceptions?—A. He knew I 
had borrowed his memorandum book for that purpose; I do not suppose he knew what 
I was doing, but he knew I had borrowed this memorandum book. 

By Mr. Smith : 

Q. Had you taken them ?—A. Yes, sir; I had taken many exceptions. 

Q. In the usual manner ?—A. Yes, sir; in the usual manner in law cases. 

Q. State whether or not that was a confiscation case.—A. Yes, sir; it was an action 
brought iu the form of a libel against sixty-three bales of cotton and John Weedou. 
The original action was brought against him. The cotton was not in fact seized, and 
had never been found; and it was a suit to make Weeden liable for the value of the 
cotton. It was an action brought in the form of a libel for the conversion of the cotton 
and the condemnation of the money to the use of the United States. 

By Judge Busteed : 

Q. Under the confiscation laws of 1861 and 1862 ?—A. Yes, sir. 

By Mr. Smith : 

Q. State why this bill of exceptions had not been completed when the adjournment 
took place. 

(Objected to by Judge Busteed. Objection overruled.) 

A. I cannot state that it would have been impossible to have prepared the bill of 
exceptions by that time; I do not remember the exact time when the judge allowed me 
to have his minutes, but I will say that I devoted what time I could to it* I was very 
anxious about the case, and I devoted what time I could to its preparation out of court, 
and I wrote a considerable part of the bill in court. It was a long bill of exceptions, 
requiring several hours’ work, and it was handed to the judge, I suppose, in about on 5 
hour after the judge ordered this announcement, that the court had adjourned without 
day. 

Q. State whether, when the judge announced an adjournment sine die , any members 
of the bar protested or remonstrated against it on the ground that bills of exceptions 
had not been prepared, and that it was necessary to keep it open to complete that busi¬ 
ness. 

(Objected to by Judge Busteed. Objection overruled.) 

A. When the order was given by the judge to the marshal, the members of the bar 
were seated around quietly; but when the order was given quite a number of the 
members of the bar rose and tried to induce the judge to postpone the order, to give 
them time to prepare their bills of exceptions. That was one reason. Other men 
wanted orders of different sorts. It was a scene of confusion. The order took the bar 
apparently—and myself certainly—by surprise, and the confusion that ensued was very 
considerable. I remember that we claimed that we ought to be allowed some time to 
put in our bills of exceptions. The answer to this was simply—as I now remember it— 
a repetition of the order to the marshal, and the court was adjourned. 

By Mr. Loughridge : 

Q. What time in the day was that?—A. As I now remember it, it was about dusk or 
a little after dark ; I would not be certain about the time. 

Q. What day of the week ?—A. I am not certain what day of the week. To the best 
of my recollection, it was Thursday or Friday. 

By Mr. Smith : 

Q. What was the day of the month ?—A. I think it was on the 20th day of December 
that the court adjourned. 

Q. You stated that Judge Busteed did not treat you with personal discourtesy? -A. 
Yes, sir; Judge Busteed never did, so far as I now recollect; and I think I would have 
remembered such a transaction. He never did treat me with personal discourtesy. 

Q. Have you observed the relations of Judge Busteed to James Q. Smith, and his 
manner of treating him in court? If so, state what you know on that subject—A. 
Yes, sir; I have observed the relations between the judge and the district attorney, James 
Q. Smith. During his courts here, they occupied the same room, so far as I liuow. I 
know that they did a part of the time. They conversed in a friendly and intimate 
manner with each other. There was apparent familiarity and intimacy between them. 


By Mr. Lougiiridge : 

Q- usual when the judge and the district attorney travel in a circuit to¬ 

gether, both strangers in a town?—A. It is usual for them, where they travel in a 
circuitm this country, to travel together. The judge, however, usually occupies a 
separate room, where lie can receive the visits of the har, as a matter of courtesy, and 
also on business where he can be occupied with the duties of his office. I think that is 
usual. 


By Mr. Eldridge : 

Q* Wherein was there any difference between this intimacy that you observed of 
Judge Busteed and Mr. Ninth and that?—A. There was a personal familiarity in their 
manner toward each other that was unusual. I might go on to use some of the ex¬ 
pressions between them—some few of them—but I do not desire to. I have stated in 
general terms so far as I could. 

(The witness was directed to state the particulars.) 

Witness. The judge called the district attorney by his given name, without any 
other appellation, as sometimes “James,” sometimes “Jimmy, my boy,” and those 
abreviations and familiarity of expressions which was to me a very unusual thing 
with a judge on the bench conversing. I do not mean to say that these expressions 
were used on the bench ; nothing of that sort occurred. The judge allowed the district 
attorney to call up cases in whatever order he chose to designate them. There were 
a very large number of cases on the docket. So far as the United States cases were 
concerned, they were not called in regular order, provided the district attorney re¬ 
quested different cases of the United States to be called up. In that way any man 
could be taken by surprise unless In; understood that there was to be no regular call of 
the docket; and many were taken by surprise. The district attorney had control of 
that business, of calling up causes. I cannot remember causes by number, but the 
number of the cause, and its place on the docket, had no influence, so far as I could see, 
in the time when it was to be tried or called for trial. The judge on the bench, on sev¬ 
eral occasions, passed nods and smiles with the district attorney. I do not know that 
there was anything improper in that, except as to the dignity of the question. I do 
not know, and could not state the meaning of these things; what the meaning of the 
nods and smiles were that occurred during the progress of causes. I only state that 
as one of the indications of intimacy. 

By Mr. Eldridge : 

Q. Did this occur when he was engaged in trying the case?—A. Yes, sir; on the 
bench. 

Q. Have you answered fully the general question?—A. The question is so general 
that I do not think I have. On one or two occasions, perhaps more—I think there 
were more—the judge spoke in a very harsh manner to the district attorney concerning 
causes in court which he was then conducting; I saw this occur on three or four dis¬ 
tinct occasions. So far as I observed, it had no effect upon their intimacy. My object 
in stating this is to show, as I think I am in duty bound to do, that the judge treated 
the district attorney on occasions as rudely as he did other counsel. I am explaining 
their relations fully. 

By Mr. Smith : . 

Q. In important cases, in respect to questions which had a vital or important influence 
u the case, state whether Judge Busteed ruled against James Q. Smith, according to 
your recollection, in any of them ? 

(Objected to by Judge Busteed. Objection sustained.) 

Q. Have you answered everything in response to the question previously put? If not 
go on and answer fully.—A. No, sir; I have not. There was a case of a motion by a 
man named Mott, as I remember it, made before Judge Busteed, in reference to the 
conduct of his attorneys in retaining certain moneys that they had received for him. 
The cause involved the question as to the amount that his attorneys ought to be 
allowed for services which they had rendered while collecting testimony. After wit¬ 
nesses had been examined by attorneys to prove the value of the services, the judge on 
the bench called on an attorney, and himself examined him. He called the witness 
(Mr. Andrews) to the stand for the other party, and examined him as counsel usually 
examine a witness, as to the value of the professional services, which was the question 
before the court, other lawyers having been examined by Mr. Morgan, who appeared 
for these attorneys. Mr. Andrews appeared as attorney for the mover. The judge 
called him on his own motion, so far as could be seen, without solicitation from any 
party, and he examined him, as counsel usually examine a witness, in the case. 

Q. Have you anything more to say in response to the question?—A. The question 
covers so much ground that I could not possibly answer it in an off-hand way. I can 
state now generally that there are other instances of rudeness on the part of the judge, 
and what appeared to me to be tyranny, which I can refer to. But most all the things 

29 b 


434 


which I observed of this sort occurred at that term of the court and at the previous 
term. They were all things of the same character, and relate to the judge’s manner 
towards members of the bar. It is proper and right also that I should state that I have 
on occasions, and on very many occasions, seen the judge conduct himself courteously 
towards members of the bar, and with very decided politeness. But I would not under¬ 
take to answer the question in detail without more time for consideration than I have 
here. 

Q. In full detail you mean?—A. Yes, sir. When I say in detail I mean if I am 
required to state all the facts that 1 know. 

By Judge Busteed: 

Q. In this case of the United States vs. Thirty Acres of Land, was Mr. James Q. Smith 
the attorney for the United States?—A. lie was. 

Q. It was a proceeding for the confiscation of that property on the ground that it 
had been the property of the rebel States. That was the claim of theUnited States attor¬ 
ney ; wasn’t it ?—A. It wasnottlie only claim. It was claimed as thesubject of forfeiture, 
because of its use by the rebel States. It wag for confiscation. 

Q. Did you keep any written minutes, either of the evidence or of the rulings in that 
case?—A. Yes, sir; I did. 

Q., Where are those now ?—A. I presume, if not destroyed, they are at my office, at 
Selma. I lost interest in the case soon after the decree, ceasing to be connected with 
it either as a party or attorney. I was a party to the suit as administrator to Weaver. 

Q. If they are not destroyed, are they at your office, at Selma ?—A. Yes, sir. 

Q. Have you any knowledge that the person to whom you sent the proof of accept- 
ance of pardon ever delivered it to Judge Busteed ?—A. I have no knowledge except 
the information derived from the person. 

Q. Is that information oral ?—A. It is oral and written. 

Q. Where is the written information?—A. At my office, in Selma. 

Q. Was the main issue in that case the acceptance of this pardon?—A. It was not. 
If was a material fact to raise one of the main issues. 

Q. Could the main issue to which this was foundation he disposed of upon its merits 
without reference to the judge getting this notification of acceptance from the Secre¬ 
tary of State?—It could not, unless the judge had determined that the proof already 
before him was sufficient to establish that point. 

Q. Did you ever complain to Judge Busteed, either orally or in writing, that he had 
decided that case before the expiration of that thirty days ?—A. I did. 

Q. When ?—A. In the district court of the United States, at the next term of the 
court. 

Q. Did you ever do it by writing?—A. I did not do it by writing, except to make a 
motion to correct the record. 

Q. I mean by letter to the judge?—A. I did not. 

Q. Have you any letters from Judge Busteed on this subject—of this thirty days not 
being allowed to run before the judgment was signed ?—A. I have not. 

Q. Did you ever have ?—A. I do not think I ever did have. 

Q. In what shape did you make your complaint at the next term of the court ?—A. 

I made a motion in the court to correct the record. The record omitted to state—1 
mean the finding of the facts by the judge—omitted to state the pardon of Weaver; 
his acceptance of his pardon; his death, and that the parties were administrators and 
heirs of his estate. Neither one of these facts were found in the decree. I made two 
motions; one was to put in certain transactions in court—that was the jury trial—at 
the demand of the jury, and the overruling of the exceptive allegations. That was 
one motion. Another motion was to insert in the record the finding of these facts, on 
which I relied; and in making that motion and arguing it to the court, I stated to the 
court that this cause had been decided without granting the time for argument or 
proof which the court had allowed, and which is of record to some extent in the court 
itself. I state, Judge Busteed, for your information, that the record shows the allowance 
of thirty days for the proof, but it does not show the allowance of thirty days for the 
argument. 

Q. Go on and state in reference to this motion what the judge said. Did you, upon 
this motion made at the subsequent term of the court, call the attention of the judge 
to the fact that the thirty days that were to be allowed you for this proof had not been 
consumed when the judgment was rendered?—A. Yes, sir. 

Q. What did the judge say in answer to that—that was publicly done?—A. Yes, sir; 
it was done in open court. 

Q. What did Judge Busteed say in answer to that?—A. There was no direct answer 
to that. The judge told me that I should have every fact which appeared in his minutes 
inserted in the record, and that he had not his record with him, but that it was in 
Mobile, and that he would postpone the consideration of this motion until he got his 
record. 

Q. Was there any question of dispute between the judge and yourself as to the 
allowance of this thirty days?—A. I do not think there was. 


485 


Q. Do you know whether there was or not; or as to any fact attaching to the allow¬ 
ance ?—A. I do not remember any dispute about the allowance of thirty days, and I 
am satisfied there was none. 

Q. Or as to any fact qualifying or going with the allowance ?—A. I do not remember 
any. 

Q* Do you recollect whether there was or was not ?—A. I do not. 

By Mr. Eldridge : 

Q. Did the judge deny that the thirty days was given as well for the filing of an 
argument as for the filing of the notice of the acceptance of the pardon ?—A. I think 
not. The entry, according to my recollection, is of the 15th of December, and the 
decree is of the 28th. I am speaking of mere dates, not of the fact when the decree 
was rendered. 


By Judge Busteed: 

Q. You state that the judge refused to allow you to argue the cause on the ground, as you 
understood, of want of time. What do you mean by his refusing to allow you to argue 
the case ?—A. I mean that 1 desired, when the testimony was through, to argue it, and 
the judge took the positions which I have already stated, that by the law of the land- 

Q. That is what you mean by refusal to allow you to argue the case ?—A. Yes; based 
upon the facts as produced before the court. 

Q. You say there was no trial by jury?—A. None at all. 

Q. And the court had itself to determine questions of fact as well as of law ?—A. I 
mean to say it undertook to do it. 

Q. Was this application that you made in court in respect of this thirty days the 
only application you ever made to Judge Busteed on the subject ?—A. I think it was. 

Q. Did you consider it a substantial cause of complaint against the judge that this 
judgment had been entered up in this way?—A. 1 did. But I was not attempting to 
get the thirty days then, or to get in the proof in reference to this acceptance of par¬ 
don. I was attempting then to get into the record a correct history of what occurred 
on the trial. The land had then been sold—that is, a part of it had been sold, and 1 
presume all. 

Q. Did Judge Busteed let you freely have his own minutes for your own use?—A. 
In the particular case I refer to, he did—that is, in the Weedon case. 

Q. When you demanded a trial by jury in this case of the land at Selma, did you 
want to argue the question?—A. I did ; and proposed to do so. 

Q. Didn’t the judge tell you the question iiad been argued very fully before him in 
the middle district by very competent lawyers—not less than three of them ?—A. Yes, 
sir ; I mean to say the judge said it had been argued fully there, but 1 do not recollect 
the form in which the judge gave the information. I tried to read to the court on that 
occasion the case of the “ Sarah,” on the question of trial by jury. 

Q. At what time in the morning does the court open in Montgomery ?—A. Ten o’clock. 
I think, is the usual time. 

Q. Not before ? — A. My remembrance is now, that the court usually met at 10 
o’clock. 

Q. How long did it remain in session at that time ? I do not mean this last term.— 
A. The court usually remained in session until, I think, 3 o’clock. Very frequently during 
that session there were evening sessions. 

Q. And they frequently ran into 10 or 11 o’clock at night, didn’t they?—A. Yes, sir, 
they did. Usually there was but one session, but frequently there were other sessions 
in the evening. 

Q. Don’t you know that following upon this sine die adjournment a session of the 
district court of the southern district of Alabama commenced—within a day or two 
after the adjournment of the court in the middle district?—A. That was not the fact 
in reference to regular terms at that time. 

Q. When does the regular fall term of the southern district court commence ?—A. 
Two weeks after the fourth Monday in November, according to my remembrance of the 


1 * l\\ r 

1 Q. And when was this adjournment, do you say?—A. On the 20th of December. 

Q. Don’t you know that Judge Busteed went to Mobile and held the district court 
after this adjournment sine die here ?— A. 1 know it as I know any public fact, 1 did 
not "O with him, but I am satisfied that he went from here to Mobile, and was holding 

court there the next week. ^ 

q. The district judge of the middle district is district judge ot the entire State / — 

A 'o °Ofbourse obliged to hold court at Huntsville, Montgomery, and Mobile by the 
law* traversing the entire length of the State?—A. Yes, sir. My attention was called 
to this thing; we were disputing about the power of the judge here to hold court at 
that time, on the ground that the term had lapsed by reason of his not being here, 
and that he ought to be in Mobile when lie was here. 





436 


Q. You spoke of a transaction with Mr. Troy, and you say that Judge Busteed stamped 
his foot on the floor?—A. Yes; there is a little elevation there on the floor ot his 
stand. 

Q. How do you know lie did ?—A. By hearing him. 

Q. Could you see liis foot ?—A. I could not. 

Q. That was impossible from where you stood ?—A. Yes, sir ; it was. It might not have 
been impossible. I might have seen it under the banister, but I am satisfied I did not 
see it. 

Q. You spoke of the coolness of Troy. Is there not a coolness which is often imper¬ 
tinent and defiant, and quite as objectionable as irascibility, Judge Pettus ?—A. I have 
noticed such manners. 

Q. And, in your judgment, as a judge, quite as hard to bear from a lawyer to a judge 
as irascibility and warmth of manner ?—A. I think not. 

Q. In the case of Weedon, you say that the judge refused to allow counsel to argue 
the case. You use the same language as in relation to the other case. What do you 
mean by a refusal to argue the case?—A. I mean that after the evidence was closed on 
both sides the judge would not allow counsel to argue the general questions arising in 
the case, on the evidence and the law. 

Q. In this case was there a jury, or did the court try the questions of fact and law 
itself?—A. There was no jury. One was demanded, and refused. 

Q. By the statutes of the State of Alabama can a bill of exceptions be allowed by a 
judge, in vacation, without the consent of both the attorneys?—A. It cannot after the 
court has adjourned, and after the minutes are signed. . The mere declaration of an 
adjournment of court is not treated in this State as an adjournment. 

Q. When the court has adjourned as a matter of fact, does not the law of Alabama 
prohibit the signing of bills of exceptions in vacation, except by consent of both attor¬ 
neys?—A. After the final adjournment the court cannot sign a bill of exceptions except 
by consent of counsel in writing. That is the practice of the State, and I believe it 
to be the law. 

Q. In speaking of the relations of Judge Busteed and Mr. James Q. Smith, you in¬ 
stance familiarity by saying that Judge Busteed called him “ James,” and “Jimmy, my 
hoy.” How often do you recollect the judge calling Mr. Smith “Jimmy, my boy?”— 
A. Well, I cannot state; but it was not often, because I was very rarely in the com¬ 
pany of the two except when I went to see the judge on matters of absolute necessity 
in my business. 

Q. And upon those occasions you sometimes indulged in social familiarities with both 
the judge and Smith?—A. No, sir; I do not remember ever to have indulged in any 
social familiarities with Mr. Smith. The only instance in which anything approxi¬ 
mating to a social familiarity between Mr. Smith and myself, that I remember occurred, 
was simply the fact that the judge requested Mr. Smith to prepare drinks for us, and 
he did so, and brought them, and the judge and myself took a drink; but Mr. Smith 
did not. That is the only instance I remember. 

Q. Your first name is Edmund ?—A. Yes, sir. 

Q. Did anybody ever call you Ned ?—A. Yes, sir; you did, on one occasion. 

Q. The cases upon the docket which Mr. Smith was allowed to take up in the order 
he chose—were they not confined strictly to cases in which the United States was a 
party ?—A. They were, as I remember. 

Q. You recollect of no individual suit of Mr. Smith’s being allowed any such prefer¬ 
ence, do you ? And, if you do, state what it was. Was any preference given to James 
Q. Smith, attorney, in his eases on the docket ?—A. Well, there was at first, in this way 
only: The court gave Mr. Smith, as United States district attorney, the privilege— I 
mean at the first sessions of the court, I do not mean of recent years—the judge gave 
the district attorney, as district attorney of the United States, the privilege of the floor, 
first, for the purpose of making ex parte motions. He was the ranking member of the 
bar as United States district attorney, and in that way he availed himself of his 
privilege, as United States district attorney, to make motions in his private cases. 

Q. Wasn’t that because he was necessarily absent in attendance on the grand 
juries ?—A. Well, he was absent sometimes ; but I do not think that was the universal 
rule. 

Q. Was there ever any objection made to the judge in court about his allowance to 
Mr. Smith in this respect ?—A. There was ; and very serious objections made, and made 
frequently, in the calling of the cases. 

Q. I do not mean in United States cases, I mean his individual cases.—A. No, sir; I 
do not remember any objection in those cases. 

Q. You say that on several occasions Judge Busteed nodded and smiled to the dis¬ 
trict attorney while the j udge was on the bench and the district attorney at the bar. 
Were those nods and smiles furtive, or were they open, so that any person looking at 
the judge could perceive what he was doing?—A. Auy person looking at the judge 
could see what he was doing; but they had an appearance as commenting on what 
was occurring between counsel and the court in reference to the trial of causes. 


437 


Q. They had that appearance to you ?—A. Yes, sir ; to me. 

Q. But whatever it was it was publicly done, was it?—A. Yes; it was done on the 
bench in the presence of the bar, jurors, and spectators. 

Q. In the Mott case, in which you speak ot Judge Busteed’s calling Mr. Andrews as 
a witness, was that a trial of a motion before the judge himself, unassisted by a jury?— 
A. Yes, sir. 

Q. YY as Mr. Andrews cross-examined by the counsel who appeared for the at¬ 
torneys ?—A. I think he was. 

Q. You speak of these instances ot rudeness as occurring at the terms of the court 
held in 1866-67 ?—A. Yes, sir ; it was mostly in 1866-’67, and most entirely, I think. I 
have seen very little at the last term of the court, and at the present term of the court 
I have not seen any very striking instances of that sort. 

Q. Have you seen any instances of that sort; if so, what ?—A. I think I have. Well, 
on last week there came up a case of some party against a man who was a sheriff of a 
county, or said to be. I think his name was Ramsey. A motion was made to suppress 
two depositions and granted. A motion was then made for a continuance, and Mr. 
Smith, Avho was for the plaintiff, conceded that a continuance ought to be granted as 
to the judgment for three thousand dollars, but insisted that he ought to have a judg¬ 
ment for about three hundred. The judge required an affidavit from the attorney, Mr. 
Samuel F. Rice, in reference to his information as to what his client would swear to. 
The affidavit was made. The judge, in a manner that was exceedingly cutting and 
offensive, though grave and quiet, said that the affidavit was prepared by an astute 
man, and was very disingenuous, or disingenuous—I do not remember that the word 
“ very ” was used—and required the attorney to make another. Another was made 
and, without other objection being made, the judge made some slighting comments on 
the character of the affidavit. I am speaking of the manner of the judge toward Mr. 
Rice; but it was in a very mild form compared with his conduct toward the same 
counsel and other counsel in former terms. 

Q. Did Mr. Rice complain of it to you?—A. No, sir. I have heard him speak 
about it. 

Q. Will you swear that the judge said it was disingenuous ?—A. The expression was, 
I think, that it was not ingenuous. That is my remembrance ot it. 

Q. Have you and Mr. Semple talked about what you were to swear about to-day 
before you came in ?—A. Yes, sir; we have. 

Q. You had a long conversation about it ?—A. We had several. 

Q. Did you and Smith talk about it ?—A. Yes, sir. 

Q. More than once t —A. Y"es, sir. 

Q. More than twice ?—A. I expect more than—I mean we have talked about this 
general matter, I reckon, a dozen times. 

Q. How often have you talked with Semple about it ?—A. Very often. 

Q. How often ?—A. As many as a dozen times, I am satisfied. 

Q. Have you paid anything towards Semple’s expenses in procuring the impeachment 
of Judge Bus teed ?—A. I have not. 

Q. Have you agreed to pay anything ?—A. I have not agreed, but I have signified 
my willingness to do so. 

Q. Have you talked about the successor of Judge Busteed with reference to any par¬ 
ticular person ?—A. I have. 

Q. With whom have you talked?—A. I have talked with several persons. The first 
person I ever talked to on the subject was Judge Woods, the chancellor of the middle 
division of the State of Alabama, with a view of trying to have him appointed. 

Q. Who have you talked with about it ? Which of these lawyers have you talked 
with about it ?—A. I have talked with Mr. Smith in reference to it. 

Q. And to Mr. Semple ?—A. I do not remember a • conversation with him on that 
subject. 

Q. To any other lawyer ?—A. Oh, yes. 

Q. To whom ?—A. Well, John T. Morgan, Judge William M. Brooks, and N. H. R. Daw¬ 
son. I am not certain, but my impression is that I have talked with almost every 
member of the bar of Dallas County—that is, every man of standing at the bar. 

Q. Was Robert H. Smith anxious to have the appointment of Woods, or did he want 
some one else in Judge Busteed’s place ?—A. The first communication from Mr. Smith 
was that he wanted me to see Judge Woods, or some other man who was qualified. 

Q. In what way ?—A. I mean qualified, by reason of being able to be legally ap¬ 
pointed to office. . 

Q. By not having been in the rebellion ?—A. Yes, sir, and who was tit tor the place ; 
and lie said he had heard favorable representations in reference to Judge Woods, and 
wanted me to inquire about him. That is the first communication I ever had with him 

on the subject. t T i i> 

Q. Wasn’t Goldth waite generally talked of as a good person to succeed Judge Bus- 

teed?_A. I never heard of it. I never heard of the possibility of it. I have heard 

several other names mentioned, which I can give, it you desire it. I will state, in 


explanation, that this conversation arose on the fact, as reported, that Judge Busteed 
intended to resign. 

Q. Intended to resign! How, and for what reasons f —A. Well, I have heard reasons 
stated in various ways. I have heard one reason stated, that he intended to resign 
because he thought his staying in Alabama was not safe. Another reason, because of 
some arrangement he had made with the committee of the House of Representatives 
not an arrangement, exactly, but some expression that he had used before the committee, 
or to some member of the committee—by which they were induced to believe that he 
would resign. 

Q. And were they to do anything in consequence ?—A. There was no bargain about 
it, but that they did do something in consequence. 

Q. Who told you that?—A. I read it in the newspapers. 

Q. Did anybody ever tell you that ?—A. I do not remember that they did, as fact. I 
have heard it spoken of in conversation. 

Q. Did Semple ever tell you that, or anything like that ?—A. No, sir. But my im¬ 
pression is, that Mr. Semple did tell me that his belief was that you would resign, and 
his belief was that that report which the committee made to Congress was induced by 
the belief of the committee that you would resign, and thereby they would be 
relieved from the further investigation of this case—not that ho knew that to be a fact, 
however. 

Q. Prior to I860, did you take an oath to support the Constitution of the United 
States of America ?—A. I did. 

Q. Subsequently to 1860, did you violate that oath f—A. I do not think I did. I en¬ 
gaged in war against the United States. 

Q. The object of that war was to overthrow the Constitution of the United States, 
as to this State among others?—A. Yes, sir; it was. 

Q. And you so understood the object of that war?—A. I did. 

Q. Did you apply for a pardon for your participation in treason against the United^ 
States ?—A. I applied to President Johnson for a pardon, under his proclamation of 
the 29th of May, 1865. 

Q. And accepted and received it ?—A. I did. 

By Mr. Semple : 

Q. Was your conversation with Mr. Semple after these conversations with the mem¬ 
bers of the bar, in relation to the appointment of Judge Woods, or before?—A. It was 
several months afterwards. It was here, during this present term of the court, and 
this other matter occurred some time in the winter. 


Montgomery, Alabama, June 3, 1869. 

Thomas H. Watts, sworn and examined. 

By Mr. Semple : 

Question. What is your profession, and how long have you practiced it ?—Answer. I 
have been practicing law since the spring of 1841. 

Q. Are you a member of the bar of the middle district of Alabama?—A. Yes, sir; I 
have been for many years. 

Q. Have you attended the courts of the middle district since they were presided over 
by Judge Busteed?—A. Yes, sir; I have. 

Q. What do you know of the judicial conduct of Judge Busteed?—A. It is difficult 
for me to say anything about it unless my attention is called to particular matters. 

Q. Detail anything in the judicial conduct of Judge Busteed in relation to cases in which 
you were concerned as counsel?—A. I have been concerned in a good many cases before 
Judge Busteed. There are two or three cases which I remember, in which there were some 
matters occurring about which I might speak. There was one case, especially, the case 
of Harper and Brothers vs. Gale. There were two suits of that character, one brought 
on a promissory note against Gale. Ido not know that there was anything in that 
trial except wliat I conceived to be a very great error on the part of the judge. But 
I could not conscientiously say that I discovered anything in that trial except what 
(with the ordinary charity we should indulge in towards others) I supposed was a 
great error. In reference to the other, all that I can state is the facts that actually 
occurred in court. I remember that the judge refused to permit the widow to become 
a defendant in that case. Mr. Graves and another, as her tenants, were sued. They 
were in possession of the land sued for, as tenants ; and the judge refused to permit 
Mrs. Gale to come in as a defendant in the suit in accordance with the statute of Ala¬ 
bama as shown to him. In the progress of that trial (in the refusal to permit that) 
the manner of the judge was very rough and unkind, I thought. There was a bill of ex¬ 
ceptions taken in that case, which Avas signed by the judge, and according to my recollec¬ 
tion of the matter was in substantial compliance with the facts that were shown in the 
trial. There were some things left out Avhiclil Avould not now undertake to state. The 


439 


most I lia<! lo complain ot was the manner in which the judge prevented any defence being 
introduced by Mrs. Gale, and the refusal to permit me to prove the value of the land. 
His manner was rough, forbidding, brow-beating towards counsel; refusing to allow 
questions to be asked; refusing to allow argument or to hear authorities read. It was 
so much so that I left the court immediately after the jury went out on the cause. 
There was a correspondence, between myself and the judge, in reference to that, which 
was afterwards published in the newspapers, in which the judge invited me back to 
the court. 

By Mr. Eldkidge : 

Q. Did you get excited and treat Judge Busfceed rudely, too ?—A. I think not. I was 
excited ; could not help being; but I think I was very respectful to him. 

Q. Did you give him no provocation for his treatment of you ?—A. I think not. 

By Mr. Semple : 

Q. Did you say anything to the judge in relation to the object for which you offered 
to prove the value of the property ?—A. I did. 

Q. What was it ?—A. It was to show that the amount involved in full was sufficient 
to give jurisdiction to the Supreme Court, on an appeal. 

By Mr. Eldkidge : 

Q. Did the judge assign any reason?—A. No, sir ; I do not recollect any. The judge 
was not in the habit of giving reasons frequently. 

By Mr. Semple : 

Q. Pass to another case.—A. There was the case of the United States v*. Jordan. 
Jordan was tried for embezzling some mail matter, and the defense was insanity of the 
defendant. After the testimony had been developed, the judge refused to permit but 
one counsel to address the jury, and timed that counsel to an hour, and refused to 
permit him to go any further than to give him five minutes at the end of the time. 
Before the argument was commenced, he stated to the counsel—I was one of the coun¬ 
sel, and Mr. Klopton was the other—he announced that but one was to be allowed to 
address the jury, and I was selected to address the jury; and also stated the law he 
would give on the subject of insanity. We had furnished him with two or three law¬ 
books on that subject, and among others we furnished him the Second Alabama Reports, 
containing a case in which Judge Armour had given an opinion. The judge stated that 
he recognized the law as laid down by Judge Armour, and that we need not argue that 
case to the jury, or argue it to him. I went on in the argument of the case, and at the 
end of my hour he stopped me. I was not more than half through in the defense of the 
case, and he said he would give me live minutes longer. I then speedily closed my 
argument. But in charging the jury, the judge, instead of charging Judge Armour’s 
opinion, charged the law as it had been given in the second court below, and which 
was reversed by Judge Armour’s opinion. We were very much surprised at that. 

By Mr. Eldkidge : 

Q. Did you call his attention to it ?—A. Yes, sir ; wo all got a little excited about 
that time, and the judge would not permit us to say anything at all. After the trial 
was over, he beckoned me to come up to him on the bench where he was sitting, and he 
asked me—that was private, however—about the charge, and I told him wliat he had 
done, and how we felt about it. The jury had then gone out. He then remarked to 
me, “ if any injustice has been done your client by this charge, or by the verdict of this 
jurv, and you will come up to my room—‘Tom Watts and Dick Busteed’—we will talk 
the thing over, and I will right it.” That was about the substance of what occurred 
at that time. 

By Mr. Semple : 

Q. What was the verdict ?—A. It was a verdict of guilty. The charge of the judge 
was on facts, different from ordinary charges here, where the facts were disputed. 

By Mr. Eldkidge : 

Q. You mean to say that ho did not submit the question of facts to the jury ?—A. I 
mean to say that he gave his opinion of many of the tacts to the jury, as a part of his 
charge. Still, I have known other judges to do that, too, but I have known their de¬ 
cisions to be frequently reversed for doing it. That is all that I remember about this 
case except that I ought to state that Judge Busteed afterwards said to me that ho had 
received a letter from the father of this young man, and that he was disposed, on cool 
and calm reflection, to recommend the pardon of the young man, and asked me to draw 
up an application for that purpose, setting forth exactly what I supposed he would 
say. I drew it up, and he signed it, making, perhaps, one or two slight alterations, 
recommending the young man’s pardon. That occurred last tall. 


440 


Q. Was tliore anything in his decision at that time to indicate that he was not act¬ 
ing conscientiously in regard to it?—A. Well, I could not say. 

Q. Was he calm and dispassionate in his charge?—A. No, he was not very calm, and 
at the same time he manifested in his charge that lie felt he was unquestionably guilty, 
and ought to be convicted. That was the manner. 

By Mr. Semple : 

Q. Did you go to him to endeavor to have that righted ?—A. 1 did not. 

By Mr. Eldridge : 

Q. In this conversation that you had with Judge Busteed, when he said he would 
have it righted, did you tell him that he had charged the case according to the deci¬ 
sion of the court below, and not according to Judge Armour’s opinion?—A. I did. 

Q. What did he say ?—A. I think he said I was mistaken. I do not remember any¬ 
thing else in connection with that case now that struck me as strange or outside of 
the ordinary proceedings of courts of justice. 

By Mr. Semple : 

Q. Is there any other case about which you can speak?—A. I remember several 
cases in which I was engaged. One was the Williamson case, in which sixty bales of 
cotton were alleged to have been seized by libel. I also remember the case of the 
United States vs. Fountain, for some small number of bales of cotton. 

By Mr. Bingham : 

Q. State what took place in the Williamson case?—A. I do not remember anything 
extraordinary in the judge’s conduct in the progress of that trial. It was the singular 
idea of the judgment. My impression is now, that during that trial the judge was 
quite respectful with the counsel. I do not remember anything of an unpleasant na¬ 
ture having occurred there. 

By Mr. Semple : 

Q. Do you know, of your own knowledge, anything else in regard to the judicial 
conduct of Judge Busteed, that would throw light on these charges?—A. I do not 
know what the charges are, and therefore I could not undertake to say anything on 
that subject. My intercourse with Judge Busteed lias been mainly in the court-house. 
I do not know of anything outside. 

By Judge Busteed : 

Q. In the trial of the Jordan case, didn’t Judge Busteed take especial pains upon the 
question of the alleged insanity of Jordan, by the introduction of Dr. Michel, of Mont¬ 
gomery, and in sending Michel with the prisoner into an adjoining room?—A. I re¬ 
member your calling Dr. Michel, and sending him in with the prisoner. 

Q. And his coming back, and my examining the doctor as to his opinion of the state 
of mind of Jordan ?—A. I do. 

Q. Don’t you remember that there was some feeling elicited by your arguing a ques¬ 
tion of law to the jury instead of to the court?—A. No, sir. 

Q. Don’t you recollect Judge Busteed telling you that was a question of law and 
must be addressed to the court ?—A. No, sir. 

Q. And that the judge told you that you could not address it with your back to the 
court?—A. I remember at first you refused to permit us to prove that the relations of 
the defendant, both branches, had manifested insanity; but you afterwards changed 
your opinion and allowed us to introduce testimony, but would not allow us to read 
the authorities in court. But I furnished you with the authorities when the court ad¬ 
journed. 

By Mr. Louglip.idge : 

Q. Did you ever notice any difficulty, or was the judge always fair in giving bills of 
exceptions ?—A. I never had but one or two bills of exceptions. 

Q. Did he seem to be fair in stating facts ?—A. It is difficult for a man to form an 
opinion. I did not think it was exactly a fair bill of exceptions in the Gale case; but 
that is frequently the case with judges, that the lawyer does not think that the bill of 
exceptions is exactly fair. 

Q. As a general rule?—A. I do not know, because I was not present when he signed 
a bill ot exceptions lor any lawyer but myself, and therefore I could not speak except 
from hearsay. I do not recollect the particulars in which I thought the bill of excep¬ 
tions was not entirely fair. 

(By the direction and ruling of the committee, the examination of this witness was 
confined to matters which had not been previously inquired of and testified to by 
other witnesses;) 


441 


Montgomery, Alabama, June 3, 1869. 

Daniel S. Troy sworn and examined. 

By Mr. Smith : 

Question. State what you know' of the general judicial conduct of Judge Busteed.— 
Ausw ei. The question, as put in that shape, is very vague. I have been in his court 
wkeu he was holding court a great many times, and 1 ha ve observed a great deal about 
his judicial conduct. His judicial conduct has been, when it suited his purposes to be, 
rude and insulting to counsel and to witnesses from the bench. I have observed that in 
man^ instances. At other times he would be pleasant, agreeable, and accommodating. 
His conduct was frequently insulting and overbearing towards both counsel and wit¬ 
nesses. Whether it was so one-lialf the time, or one-quarter of the time, of course I can¬ 
not state. Unless something occurred to attract my attention to his conduct, as differ¬ 
ent from that of ordinary judges, of course it would not be attracted, and I could not 
tell what portion of his time while on the bench w r as occupied in that way or what 
portion was not, but it occurred frequently. 

By Mr. Bingham : 

Q. Have you the means of information, and can you state what w r as the general 
habit oi Judge Busteed in his judicial office?—A. I think I can; that is, I understand 
the question to mean his habit as different from other judges. His general habit was, 
when it pleased him, which Avas quite frequently, to be insulting and overbearing to 
counsel and witnesses, during the year 1866, and the early part of 1867, principally. 
His general habit of conduct since that time has been markedly different, to my obser- 
vation. His conduct on the bench in the spring of 1868, I beiieA r e it ay as, and at the 
present sitting of the court, was much more decorous than formerly. 

By Mr. Eldridge : 

Q. Were these exhibitions to Avhich you allude, in cases in general, or w r ere they con¬ 
fined to cases to which the United States Avas a party?—A. They were generally in 
cases to Avhich the United States was a party, but Avere also manifested in other cases 
ay here James Q. Smith Avas the attorney for the plaintiff. I think lie was attorney for 
the plaintiff in all the cases. I do not recollect an instance in which it w r as manifested 
where Mr. Smith was not as counsel. He AA’as counsel for the United States, as district 
attorney, but had quite a number of cases on the civil docket also. 

Q. Did it occur as well in the civil docket cases in Avhich he aatis engaged as in those 
of the United States which he was prosecuting?—A. Yes, sir. But I have known cases 
in which Mr. Smith was engaged for the plaintiff, in which it did not occur—one or 
tw r o, or rather I should say a few'—perhaps more than one or two. 

By Mr. Bingham : 

Q. Ha\’e you known of cases Avlierein some of this rudeness to which you refer was 
manifested toward Mr. Janies Q. Smith in court?—A. To a limited extent, but nothing 
approximating to his rudeness and overbearing manner towards other persons. But 
his treatment to Mr. Smith was different, to my observation, even when lie w r as rough 
toward him. 

By Mr. Smith : 

Q. Will you please go on and state particular cases, and the facts attending them, 
illustrative of this rudeness and overbearing conduct of the judge?—A. In the case of 
the United States against a lot of cotton, in which Mr. Fountain was claimant. 

By Mr. Bingiiam : 

Q. Do you wish to be understood as saying that Judge Busteed generally, in the trial 
of cases, treated the counsel Avith unkindness or rudeness?—A. Yes; generally in cases 
Avhere the United States Avas plaintiff, or Avliere James Q. Smith was the counsel for 
the plaintiff, and the matter Avas at all litigated, such was the fact. 

Q. In how many instances did he manifest this unkindness or rudeness toward 
Janies Q. Smith ?—A. I observed it on one, tAvo, or three occasions. 

Q. Was that in cases Avhere he represented the United States ?—A. In some instances. 

By Mr. Eldridge : 

Q. Wherein did that differ from the treatment of others ?—A. His manner w r as not 
so overbearing, nor Avas he so insulting or rough tOAvarcls him. I never save him insult 
Mr. Smith from the bench, or heard him do it; but toward several other lawyers, and 
witnesses, and parties, I have heard him use language Avhich Avas necessarily in¬ 
sulting. 

By Mr. Smith : 

Q. What was the manner—the bearing of the attorneys so insulted, Avlien the insults 
Avere given ?—A. Their manner Avas generally such as is due from counsel to the court. 


442 


By Mr. Eldridge : 

Q. Were there no instances, in those cases to which you refer, where the counsel them¬ 
selves provoked this treatment from the judge—where they were the first aggressors?— 
A. No, sir. I recollect no instance of that kind where the counsel made the first ag¬ 
gression. The members of the bar generally acted with more deference toward Judge 
Busteed than I observed toward any other judicial tribunal. They were sometimes 
violating his rules, however, when he did it. But I never saw a member of the bar or 
a witness use any insulting language or manner toward Judge Busteed, except in re¬ 
sponse to an insult from him, and then to a very limited extent. The manner in vhich 
insults received from him on the bench, and his overbearing manner, were borne by 
members of the bar, and witnesses, and parties, impressed itself very deeply on my 
mind. 

By Judge Busteed : 

Q. State the names of the witnesses to whom Judge Busteed was insulting and over¬ 
bearing.—A. I cannot recollect anything like all of them. A. F. Williamson was one. 

Q. Where does he reside?—A. He is dead. He resided in Lownds County. 

Q. Name any other one ?—A. James A. Farley, banker in Montgomery. 

Q. He is here now in town.—A. A r es, sir. 

Q. Farley was the agent of the rebel States for its cotton loan, wasn’t he ?—A. He 
was. Josiali Morris is the name of another witness. 

Q. Can you name any others ?—A. No, sir ; I cannot name any more just now. 

Q. Please give the names of the parties whom I insulted, and to whom I was over¬ 
bearing.—A. Josiali Morris, A. F. Williamson, and, my recollection is, James Fountain, 
also, who is now dead. I do not recollect any others now, but there were others 
whom I cau name by referring to my papers. 

Q. What rules were these counsel violating when the aggression was made by the 
court upon them; rules of the court?—A. Yes, sir. 

Q. Publicly proclaimed ?—A. Yes, sir. 

Q. You have very bitter feelings of hostility towards Judge Busteed yourself, have 
you not ?—A. My feelings toward him are not kindly. 

Q. Does the unkindness of your feelings amount to a bitter hostility against Judge 
Busteed ?—A. I think it amounts to a hostility—a bitter hostility against him in his 
judicial capacity. Toward him personally it does not amount to hostility. 

Q. You have subscribed toward Mr. Semple’s expenses in his attempts to procure the 
impeachment of Judge Busteed ?—A. I have. 

Q. How much ?—A. I do not recollect the amount. 

Q. Have you subscribed fifty dollars ?—A. Yes, sir; more than that. I have paid 
out more money than that in the prosecution of the case; probably one hundred and 
fifty dollars. 

Q. While Semple attended to the business at Washington, you had charge of that 
impeachment business at this end of the line, did you?—A. Yes, sir ; I am fully identi¬ 
fied with the impeachment movement. 

Q. How r much money in all have you collected for Semple, either from your own per¬ 
sonal subscriptions or from the subscriptions of any other person ?—A. About five hun¬ 
dred dollars. 

Q. In all ?—A. Yes, sir. 

Q. You attended the meetings of some lawyers of Montgomery upon this subject ?— 
A. I did. 

Q. How many in all ?—A. Two or three; I do not recollect which. Three I think. 

Q. Prior to 1860 did you take an oath to support the Constitution of the United States 
of America ?—A. I did. 

Q. Subsequently to 1860 did you violate that oath ?—A. I engaged in the rebellion. 
I do not think I violated the oath in its moral obligation. 

Q. Did you esteem yourself guilty of treason in your act?—A. I did not—of moral 
treason 

Q. Did you apply for a pardon for your participation in the rebellion ?—A. I did not. 
I took the amnesty oath. 

By Mr. Smith : 

Q. When you speak of some of the persons whom Judge Busteed insulted violating 
the rules of the court, or of persons violating the rules of the court, do you mean that 
in every case the insult was called forth by a violation of the rules of Judge Busteed ?— 
A. No, sir. 

Montgomery, Ala., June 4, I860. 

Edmund W. Pettus recalled. 

By Judge Busteed: 

Question. In your judgment, as the counsel for the defendant in the case of the United 
States vs. Thirty Acres of Land, was the point of the acceptance of the pardon (for 
proof of which the judge said he would give thirty days) material to the issue ?—Answer. 


443 


I do not think it was. But the judge stated that the regular mode of proving the ac¬ 
ceptance of a pardon was by the certificate of the Secretary of State. 

By Mr. Smith : 

Q. Did you make any payments to James Q. Smith, for your clients or others, of 
sums of money under the name of “costs and allowances”? 

(Objected to by Judge Busteed as wholly immaterial. Question allowed.) 

A. Yes, sir; I did. 

Q. How much did you pay, and for how many cases was it? 

(Objected to by Judge Busteed. Objection sustained.) 

Q. Did you hear Judge Busteed state anything iu open court to the bar in reference to 
the manner in which he would view objections that would be made to costs claimed un¬ 
der the rule which he had established and put on the record in reference to confiscation 
cases which had been disposed of under plea of pardon; and, if so, what was it?—A. 
I did hear Judge Busteed make some remarks on that subject in court in Montgomery. 
I do not think I can give the exact words. I believe I can state the substance of what 
was said by Judge Busteed. The judge spoke of the matter of objections and the allow¬ 
ances which ho had determined as the amounts which should be received by the dif¬ 
ferent officers of his court in these confiscation cases: and stated that he would con¬ 
sider it illiberal or unkind iu the members of the bar to make any objections to them ; 
that they were very low and reasonable. That was the idea. I do not pretend to give 
the exact words. 

By Judge Busteed : 

Q. If, subsequent to what you heard Judge Busteed announce on this subject, you 
were of the opinion that your clients’ interests were seriously damnified, or at all 
damnified, by this request of Judge Busteed, would you have hesitated a moment, not¬ 
withstanding, to make such application to the court as in your judgment the circum¬ 
stances of the particular case demanded?— A. In reference to these matters of costs I 
would not have made a motion in that court, where the costs charged in any case 
came within the rule, as laid down by the court, because I should have considered such 
a motion as unavailing. 

Q. Is that the only reason that would have induced you not to make the motion?— 
A. Yes, sir ; the only one. 

Q. Do I understand that reason to be because the judge gave an order of court fixing 
these allowances, and that subsequently he had expressed his belief of the reasonable¬ 
ness of the rates, that you would therefore have considered it unavailing to have made 
an application upon this subject ?—A. That would be the reason, coupled with the fur¬ 
ther reason that the action of the court in that regard could not have been reviewed, 
in my opinion. 

Q. Didn’t Judge Busteed state, either in connection with that statement of court or 
at some prior time, that these bills of costs in these confiscation cases had been the 
subject of conversation and consultation among members of the bar in the middle and 
northern districts ?—A. That was stated. I do not think it was on that occasion ; but 
that was stated by the court, in substance, I think, more than once. 

By Mr. Smith : 

Q. Do you know of any such consultation with the bar having ever taken place?— 
A. I do not know of any such consultation. I can state it was never had with me or 
in my presence. 


Montgomery, Ala., June 4, 1869. 

Abram Martin sworn and examined. 

By Mr. Smith : 

Question. Did you hear Judge Busteed state anything iu open court to the bar in 
reference to the manner in which he would view objections that should be made to 
costs claimed under the rule which he had established and put on the record in refer¬ 
ence to confiscation cases which had been disposed of under plea of pardon; and if so, 
what was it ? 

(Objected to by Judge Busteed outlie ground, first, that this witness was brought to 
Washington City at the expense of the United States government, and at an outlay of 
about $300, and there examined before the sub-Judieiary Committee of the fortieth 
Congress, and that his re-examination, if it be a matter of discussion, should not be 
allowed now, after opportunity has been had between him and the prosecuting counsel, 
Robert H. Smith, to devise other testimony in relation to matters about which he was not 
examined then, and which were as completely within the knowledge of both Martin and 
Smith then as now; and second, objected to on the ground of immateriality to the 
question with which this committee is charged by the House of Representatives. Ob¬ 
jection overruled.) 


444 


A. I heard Judge Busteed in open court say to the bar, when a question was before 
the court in regard to the fees, in confiscation cases, say lie should regard it as unkind 
of the profession to agitate that question further before the court. Nov/, I cannot un¬ 
dertake to say that he used the word agitate, hut the idea is clear in my mind that lie 
said he should take it unkind of any member of the profession to raise that question 
again before the court. I do not know that he went on to specify in the particular 
terms of the question. I do not think he said that. But I have given the substance 
of his remark to the bar. 

Q. What was the occasion of the remark, and when was it ? 

(Judge Busteed objected to the first part of the question. Objection overruled.) 

A. A short time before that there had been rules in relation to this subject read in 
court and adopted by the court; and at a subsequent day of the court the question of 
allowances included under that order was brought before the court again, and upon 
that occasion, and I think it was the first term that of the court he held here, he made 
these remarks. 

By Mr. Bingham : 

Q. You mean the first term he held after he had proclaimed his rules concerning the 
taxation of costs?—A. Yes, sir ; it was at the same term, and after he had proclaimed 
his rules. 

By Mr. Smith : 

Q. Have you a copy of those rules ?—A. I have. 

Q. Did you pay any money adjudged against you for costs of execution on the dis- 
position of your case by a plea of pardon and under confiscation proceedings ?—A. 1 
paid the costs, aud took the marshal's receipt. 

Q. What amount, and when did you pay it ?—A. My receipt is dated May 25, 1867. 
I paid it to R. W. Healy, United States marshal. The amount was $228 28. 

Q. Is there any, and if so, what, reason why you did not pay this to the clerk ? 

(Objected to by Judge Busteed. Objection sustained.) 

Q. State whether you made any protest against this payment; and if so, what, at 
the time of the payment to the marshal ? 

(Objected to by Judge Busteed. Objection overruled.) 

A. I did protest against the payment of the $200. 

By Mr. Elduidge : 

Q. The two-hundred-dollar allowance?—A. Yes, sir. 

By Mr. Smith : 

Q. Had you before the issuance of that execution, and after the rendition of the 
decree, offered to pay the money to the clerk of the court, and did you offer to do that 
with or without protest ? 

(Objected to by Judge Busteed. Objection sustained—Mr. Eldridgo dissenting from 
the ruling of the committee.) 

Mr. Elduidge. I think the question should be answered under the statement of 
counsel that he proposes to prove that the clerk refused to receive the monev under 
protest. 

Mr. Loughridge. I sustain the objection on the ground that no evidence has been 
adduced connecting the judge with the transaction, which, I think, should be done 
before the evidence is allowed. 

By Mr. Semple : 

Q. Who was the clerk of the court?—A. Mr. Storer. 

By Judge Busteed : 

Q. Have you ever made any motion to the court since the payment to Marshal Healy 
of this $228 28, for a revision or review, by way of appeal or for relief?—A. I have not, 
for the reason that- 

(Objection made by Judge Busteed to the witness stating his reasons. Ojection sus¬ 
tained.) 

Q. Didn’t Judge Busteed, at the same time when you say he made the remarks as to 
the construction he should put upon an application in respect of the fees adjudged in 
confiscation cases, also state as a reason for this, that he had consulted the bar in open 
court, both at Huntsville, in the northern district, and at Montgomery, in the middle 
district, on the subject of those allowances, and that no objections had been made by 
members of the bar to those allowances ?—A. I have no recollection of any such state¬ 
ment. 

Q. Will you state that none such was made at the same time?—A. Not in my hear¬ 
ing. 

Q- Will you say in your presence, or in your hearing?—A. I say in my hearing. 

Q- Isn’t it a fact that you are a little hard of hearing?—A. I am somewhat hard of 
hearing, but I could hear very distinctly, I think, your voice in court. 





445 


• ^',4^ y ou mean t° say that your capacity to hear my voice depends upon the tone 
in \vInch it may be delivered at the particular time?—A. My capacity to hear your 
voice certainly does depeud upon the tone of your voice. 

Q. At the particular time ?—A. At the particular time. 

By Mr. Smith : 

Q- Was the tone in which the judge spoke in reference to this subject, one in which 
you heard, or did not hear?—A. 1 did not hear the question ; please repeat it. 

Q. Was the tone of voice in which the judge spoke in reference to that matter, one in 
which you heard, or not ?—A. 1 heard it very distinctly; I have generally found no dif¬ 
ficulty in hearing Judge Busteed on the bench. 

By Judge Busteed : 

Q. Have there been any occasions when you had any difficulty in hearing Judge 
Busteed on the bench ?—A. I do not recollect any. 

Q. Have you not been often obliged to ask him what he said to you, twice, during 
the trial of a case ?—A. I think not; or, if I have .done so, it was because I did not 
comprehend your object or meaning—not because I did not hear the words. 

Q. Does this lack of comprehension of yours involve in any degree your deficiency 
in hearing ? 

(Mr. Eldridge objected to further questioning the witness upon this particular fact 
of his hearing. Objection sustained.) 


Montgomery, Alabama, June 4,1869. 

E. C. V. Blake sworn and examined. 

By Mr. Semple : 

Question. Have you carefully searched your office to find whether there is in you r 
office any report of sales in the cases numbered 85, 90, and 93?—Answer. What are 
the names of the cases ? 

Q. I gave you the numbers on the docket in a memorandum.—A. I can answer that 
Mr. Semple gave me a long memorandum there, that will take me tw r o weeks to fix up 
properly, the way I think it should be done ; and I can answer the entire thing, so far 
as that is concerned, by the paper now exhibited to the committee. I have made out 
a statement of cases in which the clerk has received proceeds for deposit. 

Q. I understand that you have brought in with you a statement showing the pro¬ 
ceeds of all the sales which you have received from the marshal ?—A. I have. 

The statement referred to was offered in evidence, and allowed to be put in the 
record. It is as follows: 


Cases in which the cleric has received proceeds for deposit. 


95. United States vs. Two acres land, (Selma,) net 

714. 182 bales cotton. 

Tax in kind—warehouse- 

912. 19| barrels whisky.. 

39 

350 bales cotton.. 


$1,692 00 
12,710 98 
133 00 
359 89 

261 53 


925. 

130. 

24. 

341. 

750. 

884. 

118. 

721. 

723. 

717. 

130. 

33. 

720. 

905. 

127. 


55 

70 bales cotton. 

Two bales cotton.. 

Twenty acres land. 

Ten acres land. 

87,000 pounds iron. 

22,000 pounds iron. 

Two wooden buildings. 

10 bales leather. 

50 bales cotton, (Branch). 

70 bales cotton, (Powell). 

60 bales cotton, sacks, &c., (Williamson). 

Lot hospital furniture. 

E. M. Hastings et al . 

Lot scrap-iron and brass, (certificate).. .. 

41 bales cloth and 33,000 pounds wool, (certificate) . 


6,134 18 
121 65 
1,987 96 
31 00 
534 78 
84 15 
54 88 
609 77 
1,832 25 
2,266 27 
153 87 
98 27 
1,815 35 
5,858 80 
2,872 15 


39,612 73 
























446 


Statement of bank account. 


Amount currency deposited in First National Bank of Selma. $34,223 51 

Amount certificates of deposit.- 8,730 95 

Total deposits and certificates. 42,954 40 

Amount withdrawn hy check. 3, 341 73 

Balance on deposit and certificate. 39, 612 73 


Memoranda of checks. 

December 24, 1866.—United States vs. 70 bales cotton, in favor of J. A. El¬ 
more.-. $1,000 00 

January 2, 1867.—United States vs. 70 bales cotton, in favor of J. A. El¬ 
more ... 1, 000 00 

February 25, 1867.—United States vs. 70 bales cotton, in favor of J. A. El¬ 


more . 125 94 

February 25,1867.—United States vs. 70 bales cotton, in favor of informer. 1, 062 97 
April 8. 1867.—United States vs. 60 bales cotton, in favor of informer. 152 82 


3,341 73 


Q. Have you any reports of sales in any other cases ?—A. None, except in those cases 
I have here—twenty in all. These are the only cases I have anything to do with, so 
far as money or reports go; all where the report of sale is on file. 

By Mr. Eldijidge : 

Q. Whether the money has been paid to you or not-, is that all the cases in which 
there are reports of sale in your court ?—A. No, sir. I think there are reports of two 
other cases, but I have never received the money. There might be more, but that is 
all I remember. 

By Mr. Semple : 

Q. Is there any report of sale on file, or has there been ever any on file, in your office 
in the case of The United States vs. Thirty acres of land and improvements, No. 85—the 
Weaver property, in Selma?—A. Yes, sir; I think we have a report of the sale of it. I 
believe it is known as the Weaver tract. 

Q. In No. 90, The United States vs. One lot of land and improvements, about two 
acres of land?—A. Known as the Selma school lot ? I think that I have that. I have 
the report of The United States vs. Two acres of land, marked “ Selma.” I suppose it 
is the same. 

Q. In case No. 93, of The United States vs. The naval foundery and rolling-mill and 
lots?—A. We have a report of that. 

Q. You have a report of sale ?—A. Yes, sir. 

Q. I understand you to say that in only a few cases besides those which you have 
named there in the exhibit, in which the money has been paid to you, whether there 
are reports of sale on file?—A. That is all, I think, which has come into my possession, 
with the exception of those cases named in the exhibit. 

Q. Is there any paper on file in your office showing the gross amount of sales in the 
case of The United States vs. Twenty acres of land, No. 24 ?—A. I have a case in which 
I have received money and a report—The United States vs. Twenty acres of land. 

Q. In the case of The United States vs. Two acres of land, No. 25, have you any report 
of sale on file?—A. I have in one case. I have only one report in the two acres of land 
case. There arc two cases of two acres, but the title of one is different from the title 
of the other. 

By Mr. Eldridge : 

Q. But you can tell in which case you have the report of sale?—A. No, sir. 

By Mr. Semple : 

Q. No. 27 is the United States vs. One lot of land and improvements, containing one 
acre.—A. I have no such case. 

Q. No. 38 is the case of the United States vs. One cotton warehouse; have you any 
report of sale in that case ?—A. 1 have nothing on this list designated in that manner. 

Q. Wliat is the minute entry in case No. 2, of the United States vs. John Bobbins ?— 
A. “June 14, 1866. This day came James Q. Smith, esq., attorney for the United 
States, and it appearing to the court, by the production of the President’s warrant of 
pardon and amnesty, that the defendant has been pardoned, it is therefore ordered 


















447 


that the property seized in this case by the marshal be released, the defendant paying 
all the costs, charges, and allowances, according to the schedule of fees; being-"dol¬ 

lars, lor which execution may issue.” 

Q. Look at the next case on that minute entry, No. 4, the-United States vs. E. A. 
Llunt, and state whether that entry is the same in character as the preceding one—A. 
It is in like form. & 

Q. The amount in dollars being omitted?—A. Blank. 

Q. In case No. 11, the United States vs. Given and Ellsbury, is the entry similar in 
character to the other two, omitting altogether the statement "in dollars of the amount 
it covered?—A. Yes, it is the same. 

By Mr. Bingham : 

Q. Do you swear that you will make out, according to the best of your knowledge, 
a certified statement of like entries appearing upon the journal of this court, and fur¬ 
nish it to the committee under your certificate ?—A. Yes, sir ; as soon as I can. 

(The prosecutors and the defendants assent to this manner of taking proof.) 

By Mr. Semple : 

Q. As to the moneys received in the cases embraced in the list you have already fur¬ 
nished, were they deposited by you in the registry of the court, and if so, where ?—A. 
They were deposited in the First National Bank of Selma. I believe that was the title 
of the bank. 

Q. And that list shows all the moneys received by you from the marshal from the 
proceeds of sales of confiscated property, does it ?—A. Yes, sir ; that shows all received 
from the marshal. 

Q. Have you the bank-book in which your account with the bank—your deposits, 
&c.—are stated?—A. I never kept any bank-book account with the First National 
Bank of Selma, by reason of the distance of the bank, and there being no communica¬ 
tion, except by mail. I always deposited the money in the bank at Montgomery and 
took their certificate of deposit for the money deposited, and sent the certificate 
by mail to the cashier of the First National Bank of Selma, and received from him an 
acknowledgment of the receipt of my inclosure. 

Q. Have you the checks which were drawn by you on the bank and charged by the 
bank to you in your account?—A. I have stated them in the exhibit already put in 
evidence. 

Q. Have you the original checks ?—A. No, sir. 

Q. Have they ever been returned to you ?—A. No, sir. 

Q. Have you ever applied for them ?—A. No, sir; 1 did not want them. 

Q. Have you any book showing the amount of fees which were paid as costs or 
allowances in the confiscation cases which were dismissed on the production of the 
President’s pardon ?—A. No, sir ; I have got no book of that sort. 

Q. Have you any means of arriving at a knowledge of the amount which has been 
so paid ?—A. Not except mine—so far as I am concerned myself. 

Q. Have you any means of arriving at the precise amount which has been paid to 
you in such cases?—A. I believe I stated that in Washington, altogether, my fees 
amounted to about, up to that time, $7,500. 

Q. Were the costs in those cases generally paid to you or to other persons, and if 
so, to whom ? 

(Objected to by Judge Busteed, on the ground that the witness has already stated 
he lias no knowledge of the matter except as regards himself. Objection sustained.) 

By Mr. Smith : 

Q. Did you, as clerk, collect from the parties, defendants, the whole costs and dis¬ 
tribute it among the other officers of the court, or did somebody else collect the costs 
and you receive your part of it ?—A. Sometimes I collected for the others and some¬ 
times I did not. 

Q. Please give an account of the costs which you collected for others ; the amounts 
of them ; the cases to which they pertained, and to whom they were distributed.—A. 
I could do that in about two months’ time. I do not know whether I would be able to 
do it or not then. I never saved the memorandums. If I could get hold of the mem¬ 
orandums I could probably get at it. 

By Mr. Bingham : 

Q. Would you lie able to give any further answer than you have just given to Mr. 
Smith’s question, except by reference to the records of the court, or to such written 
memoranda as maybe under your control?—A. Nothing except from memorandums 
that I may have. That is the only way I could find it out. 

By Mr. Eldiudge : 

Q. Did you keep no account between yourself and the other officers of the moneys 



448 


that you collected and distributed to them?—A. I used to keep a memorandum, when 
I gave it to them. I kept no regular account with them. 

Q. When you paid over moneys to them, did you take receipts from them?—A. 
Sometimes I did, and sometimes I did not. 

Q. Have you preserved those receipts?—A. I presume I did ; I could not tell that; 
I may have them, and I may not. 

By Mr. Smith : 

Q. Are you enabled to state categorically cost cases in which you received the costs 
in full, and what you did with that money ?—A. I cannot state or give a list of them. 

Q. Have you any means of ascertaining those facts ?—A. No, sir; I have not. 

Q. What is the reason you cannot ascertain those facts ?—A. There is too great a 
lapse of time; I answered that question before; the district attorney and the marshal 
I believe are satisfied with all 1 paid them. 

Q. Have you no cash-book which will show those facts?—A. No, sir. 

Q. Have you no record or memorandum which will show those facts ?—A. I may 
have portions of it in some place; where they are I do not know, or whether I can 
produce any. 

Q. Do your records show any entries in which those cost cases have been collected ? 

(Objected to by Judge Busteed on the ground that the records themselves will show 
wliat they contain, and are the best evidence. Question allowed.) 

A. The execution docket may show some cases; they are collected on execution; I 
would not be positive about it. 

Q. Will you bring in your execution docket, or any other record of the payments of 
the costs on non-execution cases ?—A. 1 can bring in the execution docket. 

(The execution docket was brought before the committee by the witness.) 

Witness. On examination of the execution docket, page 66, I find the case of the 
United States vs. Abram Martin. The return states fieri facias, issued May 24,1867; re¬ 
ceived May 24, 1867; satisfied in full May 25,1867—R. W. Healy, United States marshal. 

By Mr. Eldjhdge : 

Q. What docket have you here before you ?—A. The execution docket of the United 
States district court for the middle district of Alabama. 

By Mr. Smith : 

Q. Is this the only execution docket there is of this court ?—A. That is the only one 
that I ever saw ; they had some other one before the war. 

Q. Is it the only execution docket that you have had since Judge Busteed was 
judge?—A. Yes, sir ; I think it is. 

Q. Does this docket show all the cases in Avhicli executions have been issued?—A. It 
does to the best of my knowledge and belief. 

Q. Does the docket show in detail any cases excepting those in which executions 
have issued?—A. No, sir ; and there is no other execution docket since Judge Busteed 
became j udge. 

By Mr. Eldhidge : 

Q. When this $200 is collected, in any of these cases when it has been paid to you, 
what disposition have you made of it ?—A. You mean generally in the two-liundred 
dollar cases? 

Q. Yes, or any one case?—A. A certain proportion goes to the marshal; a certain 
proportion goes to the district attorney; and a certain proportion goes to the clerk. 

Q. Give us the proportions; how is it divided up?—A. 1 believe that one time the 
clerk got one-eighth ; but the latter part of it the clerk got a quarter; the marshal got 
a quarter, and the district attorney got a half. 

Q. The district attorney got $100 out of the $200 ?—A. Yes, sir. 

Q. By whose order or direction was that division of this sum made?—A. I do not 
remember now ; I believe it was an order of the court; I will not be certain about it. 

Q. The $200 of which you speak, is the allowance of one per cent, on the $20,000 ?— 
A. Yes, sir; in confiscation cases of that character—personal cases. 

Q. Dismissed on the presentation of pardon ?—A. Yes, sir. 

Q. Was James Q. Smith acting district attorney after Healy became marshal?—A. I 
do not know, indeed, sir ; I was not here. 

Q. Do you know whether he was acting district attorney after Healy was appointed ?— 
A. I do not know ; I was not here. 

(It is admitted by Judge Busteed that in many eases it appears of record, that to the 
ordinary taxation of costs is added in the execution two hundred dollars, which is the 
two hundred dollars above referred to, under the rule of the court, which means one 
per cent, on twenty thousand dollars, and that these sums were collected by Marshal 
Healy; the execution docket, showing facts to that effect, being present before the 
committee.) 


449 


By Mr. Smith : 

<i- Were orders of sale issued in confiscation cases—filed against property—did tliev 

oc «>“''•'«*» i» the records'? and if sJ’JLre?-£ 1 
t.iink not, at the time of their issuance I think not. 

Q. Does the fact of their issuance appear?—A. No, sir; 1 think not; so far as 1 
know, orders of sale were regularly issued. 

+l»!on) Vh f’ e Av re i tll ° Se l ,pocc ® se ® tliat y° u issued, and the returns that were made upon 
tiiem .- A. \\ e have them in the court. 1 

Mr. Smith. I ask that they may he produced. 

appears from the minute docket of the United States district court for the 
middle district of Alabama, that in all confiscation cases where default is made tlio 
following entry ,nutt at is mutandis, appears: “On this day came James Q. Smith, esq., 
attorney of the United States, and on motion of the said attorney, all persons having, or 
pretending to have, anything to say why the same should not be condemned as for¬ 
feited, according to the prayer of the said information in this case, being solemnly called 
to come into court and answer the said information, and no one having appeared to 
answer the same, it is therefore ordered by the court that the property mentioned in 
the information be condemned as forfeited to the United States; and it is further or¬ 
dered by the court that the said property be sold at public sale by the marshal of the 
United States for the middle district of Alabama, upon giving the regular notice of the 
time, place, and terms of sale, by causing the same to be published in the newspaper 
printed and published in the city of Montgomery, for cash in hand to the highest bidder, 
paying the proceeds thereof of said sale to the clerk of said court, ou or before the said 
teim thereof, and the marshal will make full report of sale at the next term of the court.) 


By Mr. Semple : 

Q. Iii this case, No. 721, of the United States rs. Ten bales of leather, the order 
of distribution of the judge directs the payment to Blank of one-lialf of the amount, as 
informer, and that you shall take his receipt and file it with the papers in this case. 
Did you ever pay that to the informer? 

(Objected to by Judge Busteed as wholly beyond the province of the inquiry.) 

Mr. Bingham. If there was anything criminal in the judge, it was in the order of the 
judge. 

(Question not allowed.) 


By Mr. Eldridge: 

Q. Do you know who the informer was in that case?—A. No, sir. 

Q. Do the records of the court show who the informer is in that case?—A. No, sir; 
because no informer has made his appearance to claim any portion of the money. 

By Mr. Semple : 

Q. Will you state whether any information by an informer has ever been filed with 
you in this case of the United States vs. Ten bales of leather, No. 721 ? 

(Objected to by Judge Busteed as wholly immaterial. Objection overruled, Mr. 
Bingham dissenting.) 

Mr. Bingham. I dissent from the ruling, on the ground that the decree is in the hand¬ 
writing of the district attorney, and he alone is responsible until the guilt of other 
parties is proved for the omission of the name of the informer. 

Mr. Eldridge. 1 consent to allowing the question to be put, on the ground that the 
judge, having signed the decree in his own proper handwriting, is himself only respon¬ 
sible for the decree. 

A. I cannot say whether there is an informer mentioned in the information or not. 
I did not look at it. 1 do not know of any affidavit of any informer in the case. 

By Mr. Eldridge : 

Q. Will you furnish copies of the papers produced by you in court in the case of the 
United States vs. Two Arces of Land, and in the case of the United States vs. Ten Bales 
of Leather, including a complete transcript of the said cases?—A. I will; as soon as I 
can. 

[The orders referred to are in the handwriting of the district attorney, and the inter¬ 
lineations referred to by him are in the handwriting of the judge, and the erasures 
made by him.] 

By Judge Busteed: 

Q. Repeat the form in which in these confiscation cases appearing ou the docket, and 
in which pardon was pleaded, the district attorney asked for judgment, and the form 
in which, upon the asking, the court granted the judgment.—A. The district attorney 
would say : “In the case of the United States vs. A. B.—pardon pleaded—judgment of 
dismissal apon the payment of costs;” which motion would be recognized by the attor¬ 
ney for the defendant in court, and the judge would then say, “Takeyour order, sir.” 

30 b 


450 


Q. Could tlio amount of costs have been determined when the judgment was pro¬ 
nounced in these cases without a computation then made of the value of the property of 
the person pleading his pardon ?—A. No. 

Q. Do you know, as matter of fact, when and by whom such computations were 
subsequently made ?—A. By the district attorney; made after the term of the court 
was over—in vacation. 

Q. Will the execution docket show when the moneys were collected as to time ?—A. 
In cases that are on the execution docket, of course they show. 

Q. Isn’t it a fact that they are all collected by execution in vacation ?—A. Yes, sir. 

Q. Where was Judge Busteed in the vacation of the court in the middle district; 
was he in the middle district of Alabama?—A. No, sir; he w T as not in the middle dis¬ 
trict during the vacation. 

[The prosecutors desired to recall James Q. Smith, late district attorney of the United 
States; but, by reason of his illness, he was unable to appear before the committee.] 

Montgomery, Alabama, June 4, 1860. 

John Hardy, recalled. 

By Mr. Semple : 

Question. Did you ever make any sale in the case of the United States vs. Two Acres 
of Land—case No. 25 on the docket?—Answer. I do not recollect what the title of the 
case was. My impression is that there were two cases; one in the city of Selma, and 
the other in Greenville, perhaps. 

Q. Did you ever sell in more than one case of that title?—A. I do not recollect; I 
have no distinct recollection. 

Q. Did you sell a lot in Greenville?—A. I did in Selma. I have a distinct recollec¬ 
tion of that. 

Q. Did you sell the Greenville lot?—A. My recollection is I did. I am not certain. 
If you had given me a memorandum of it, I could have given you the information. 
The only cases that I have any memorandum in are the cases Mr. Semple gave me. 

Q. If you made a sale in Greenville, did you make any return of sale ?—A. I pre¬ 
sume so. 

Q. In case No. 27—the United States vs. One Lot of Land and improvements, contain¬ 
ing about one acre—in which there Avas an order of sale; did you make any sale in that 
case?—A. I have no recollection. 

Q. Have you made sales, under orders of sale of the court, in any cases, in which you 
have not reported to the court; and, if so, in how many. 

(Objected to by Judge Busteed, except it is sought to connect the district judge with 
it. Objection sustained; Mr. Eldriclge dissenting.) 

Mr. Bingham. If you couple w r itli the question “with the knowledge of the court,” 
the question may be answered; otherwise I sustain the objection. 

Mr. Lougiiridge. I am in favor of sustaining the objection to the question on the 
ground that there is not sufficient evidence to connect the judge Avitli the marshal in 
the matter. 

Mr. Eldridge. The clerk of the court has been questioned, and alloAved to answer in 
relation to the issue of executions, and the amounts collected in confiscation cases, 
whether by judgments for costs or otherwise. He has testified to all the cases Avliere 
the judgments and costs have been paid to him, or returns of sales made by the 
marshal to him. I think there is some evidence tending to show complicity between 
the marshal and the judge. He has made collections, under the order of the judge, 
when the allowances Avere not fixed in the order, having been left blank. He may have 
collected under these more than he ought, and by Airtue of the improvident order of 
the judge. I think it is a question for the whole committee, Avhen the evidence is all 
in, Avliether this be so or not; and for these reasons I think the testimony should be 
received. 

Mr. Bingham. I think it is a question for the Avliole committee whether this district 
attorney, to whom he refers, has not already SAvorn before the Avliole committee that 
the judge had no interest, direct or indirect, in any fees or charges he ever made. 

Judge Busteed. As I understand the matter, an issue is made upon the general ju¬ 
dicial conduct of Judge Busteed towards lawyers, parties, jurors and Avitnesses ; and 
evidence has been offered and receh'ed touching this issue. I desire, if the commit.ee 
consider these matters Avithin the scope of their present inquiry, to know whether, 
upon tlio evidence before them upon this subject, they consider I am called upon to 
answer it; and if I am so required I state my readiness now to produce witnesses 
resident within the middle district of Alabama, to the number of one hundred, or any 
less number that the committe shall limit me to, or to a greater number if they will 
allow me. But if the sub-committee is not ready hoav to announce its determination 
upon this subject, I ask that my right to produce Avitnesses be reserved to me. 

Mr. Bingham. I move that the statement be entered upon the record. 

Mr. Lougbridge. I second the motion. 


451 


Mr. Eldridge. 1 dissent from the ruling of the sub-committee. 

[By direction of Mr. Bingham, the following statement was ordered to be put upon 
the record. The committee decline to express or intimate any opinion as to the effect 
of the testimony taken before them, but notify judge Busteed that so far as the sub¬ 
committee are concerned, they unanimously recognize his right to notify the Judiciary 
Committee of the House of his readiness to call witneses in rebuttal of all the testi¬ 
mony that has been offered against him before the sub-committee.] 

Mobile, Alabama, June 7, 1869. 

Judge Edmund S. Dargan, sworn and examined. 

By Mr. Smith : 

Question. What is your business or profession?—Answer. I have been a. practitioner 
of law for forty years, save six or seven years, when I was on the bench. 

Q. What places have you filled ? 

(Objected to by Judge Busteed as wholly immaterial. Objection sustained.) 

Q. Have you been a practitioner in the circuit and district courts of the United 
States, held at Mobile, since 1865 ?—A. Yes, sir ; but my practice limited. 

Q. Please state what you know of the judicial conduct of Judge Busteed upon the 
bench.—A. I have to limit my testimony to two particular cases that struck me with 
surprise and astonishment. One was the case of the Pensacola Railroad vs. Riley. I 
am not certain of its corporate name, but that is the name the road goes by. Mr. Hall, 
now dead, brought the suit. It was brought to the first term—process served more 
than twenty days before the sitting of court. Under the practice of the code of Ala¬ 
bama, which had been adopted by the circuit court of the United States, in 1853 or 1854, 
the defendant had three days of the term within which to plead. On Monday, the first 
day of the court, the docket was called. That case was called. The plaintiff’s coun¬ 
sel, when the case was called, observed that it was just brought, and that the defend¬ 
ant’s counsel had three days within which to plead. The defendant’s counsel rose and 
said he would waive the three days. The plaintiff’s counsel then said that under the 
practice, witnesses were never subpoened or brought into court before the three days 
for pleading had expired ; that his witnesses resided some forty or fifty miles from the 
city, and he could have them here on Thursday. Judge Busteed replied, u You are a 
corporation, this is a single man brought from the country here to try this case; and, 
Brother Hall, I will give you one hour to get ready in.” Mr. Hall said he could not 
get ready. The hour about elapsed, and the judge called the case, and said he must go 
to trial. Hall replied that he could not. “Then what will you do?” “ I must take 
a nonsuit.” At first the judge seemed to doubt his right to take the nonsuit, but 
on a moment’s reflection he yielded to it, and allowed him to take a nonsuit, and fined 
the plaintiff, or announced a fine of ten dollars for taking the nonsuit. Mr. Hall, on a 
subsequent day, moved to set the nonsuit aside. That motion was refused. That is 
all I know of my own knowledge. The records will show. I heard it reported— 

(The witness was not allowed to state what he heard reported.) 

Witness. Another case was a case which I am satisfied that Judge Busteed never 
understood. It was a case of mine. The title of the case is Ford vs. Beckham, admin¬ 
istrator. Beckham, as administrator of his father, had been sued on a note. There was 
no defense whatever to the note—the debt was unquestionable. He handed me a copy 
of the writ to enter an appearance, simply to prevent judgment by default. Afterward, 
owing to the change of the country, the estate that had been thought to be rich became 
entirely insolvent. He lives in Clark County—Beckham does—and before the trial in 
May—April or May, 1868—he gave me information that he had reported the estate in¬ 
solvent to the probate court of Clark County; that the court had appointed the sheriff 
of Clark County as administrator de bonis non, to wind it up. He had not been contin¬ 
ued in office; that he had made a final statement of the estate, and under the order of 
the court had transferred all the assets that had come to his hands to the administra¬ 
tor. I put that in the plea. The counsel on the other side I do not think compre¬ 
hended the plea. Mr. Decatur C. Anderson was the counsel on the other side. When 
the case was called, Judge Busteed asked if a jury would be necessary in the case. I 
replied that it would depend upon the course that Mr. Anderson should take with the 
plea that I had put in. Mr. Anderson replied that he should demur to it. I then ob¬ 
served I wanted no jury, for it was the only defense I had to the suit. The case stood 
so. It came up in its order in the regular time, and Mr. Anderson rose and stated to 
the court that it was a plea of insolvency of the estate. As soon as he said it the court 
stopped him, and observed that he had ruled in all such cases under our law that that 
did not rest the judgment; but the case was decided upon the other issues. I rose and 
stated to his honor that he had never decided the question raised by this plea, and pro¬ 
posed to read the plea. He would not permit it. I then proposed to state the facts of 
the plea, and he stopped me. 1 then proposed to read the section of the code under 
which the plea was filed, and he would not permit me to read that. He then told me 
to si<ui a paper waiving a jury. I wanted no jury, but I hesitated a moment. I was 


452 


anxious that the court should understand the facts of the ease. He then spoke to me 
in an angry and threatening manner, “Judge Dargan, you had better sign that paper.’’ 
I believed that I should have been imprisoned, and did not know what I had better do. 
I signed the paper and withdrew from the court, and have never been in it since. 1 
have a copy of that plea here now, and I am satisfied Judge Busteed lias never heard 
the distinction I made in it; and if ho will listen to me now, I will tell him what I 
wanted to say then. 

[The witness offered the following, which was accepted and put in evidence:] 


Foun 

vs. 



In the Circuit Court of the United States. 


And now comes the defendant and by leave of the court files this his further plea, 
and says that the plaintiff ought not further to have or maintain his suit against him, 
because he says that since the last continuance of this cause, to wit, on the first Mon¬ 
day of January, 1868, he reported the estate ol William L. Beckham, the intestate, 
insolvent to the probate court of Clarke County, which court granted to this defendant 
the letters of administration, de bonis non, by virtue of which he was clothed with the 
powers and authority of administrator of said estate, and upon said report such pro¬ 
ceedings were had that said estate was duly declared insolvent by said probate court 
or Clarke County, to wit, on the third Monday of February, 1868; and said defendant 
further says that afterward, to wit, on the first Monday of April, 1868, the sheriff of 
Clarke County was duly and regularly appointed administrator of said estate, as an in¬ 
solvent estate, and in pursuance of the order and decree of said court, this defendant 
handed over and surrendered to the said sheriff of Clarke County all the assets of said 
estate that ever came to his hands as such administrator, and this defendant by the 
decree of said court was discharged from all liability on account of said administration; 
all of which will appear by reference to the records of said probate court of Clarke 
County, which still stands in full force and effect, of all which the defendant is ready 
to verify, &c. 


DARGAN& TAYLOR 


[SEAL.] 


For Defendan t. 


I, Nathaniel W. Trimble, clerk of the United States circuit court for the fifth judicial 
circuit and southern district of Alabama, hereby certify the above to be a true and cor¬ 
rect copy of the said plea, filed in case of John B. Ford versus Samuel Beckham, admin¬ 
istrator, the original of which is now on file in my office. 

In witness whereof I hereunto set my hand, and cause the seal of said court to be 
affixed, this 7th day of June, A. D. 1869. 

[SEAL.] " N. W. TRIMBLE, Clerk, fc. 

Witness. That was the plea which was filed under section 2279 of the code. It was 
treated as a simple plea of insolvency under section 2208. The question intended to 
raise by it has never been decided, within my knowledge, either by the supreme court 
of Alabama nor by the circuit court. The practice has usually been in such a case, 
when the administrator has resigned and surrendered over all the assets, to issue a 
notice to the administrator appointed, and bring him in, and then judgment is rendered 
against the administrator who has the assets in his hands. Such has been my practice, 
and such I think has been the practice of the bar. To this appeal there was a demur¬ 
rer, and the demurrer sustained. I could not read the section of the code under which 
it was framed to the court. 

By Mr. Eldridge : 

Q. Were you allowed to make an argument at all!—A. No, sir; none whatever; 
was not allowed to read the plea. I attempted to state the plea, but was forbidden. 

By Mr. Smith : 

Q. What is the effect, under our decisions, of a decree in a judgment against an ad¬ 
ministrator, as to his own personal liability; what would be the effect against the 
liability of a man against whom the judgment was rendered ?■—A. If a final judgment 
was rendered after that plea was overruled by a demurrer, there is no man in Alabama 
who can say with certainty what the effect would be upon that administrator. My 
impression is—or my legal opinion is—that he would be bound for the debt. But it is 
an opinion in which other men might well differ from me. 

Q. Has or has not the supreme court of Alabama decided that the final judgment is 
an admission of assets in his hands for the payment of it; and whether or not an exe¬ 
cution on the return of no property found, may not issue against him personally, 
against any further suit ?—A. They have so decided. Such is the settled law where 


453 


there is no plea of insolvency, 
judgment does not bind the 
Q. What is done with it, 

th Ult> . W f iere [t is filed 518 au adjudicated claim, and there reedves its share^of 

Tile assets. 


^ * there was a plea of insolvency not contested, the 
tlie assets oi the administrator, de bonis proprius , at all. 
it, then ?—A. It is certified in the State courts and the probate 


By Mr. Bingham : 

Q. Do you know of any case in which the supreme court of Alabama ever ruled that 
an administrator, sued at the instance of his intestate, who pleaded insolvency, de- 
muirer pleaded, and the plea and demurrer sustained, held that judgment might be 
lendered thereafter, which would bind the personal estate of the administrator after 
he had pleaded that plea ?—A. I do not think that the case put has ever occurred in 
Alabama, save m this one case. I wish to make this statement: I do not have the 
slightest idea that it was the intention of the court, l>v that judgment, to bind him in 
personam —none whatever. 


By Mr. Smith : 

Q. Why do you come to that conclusion?—A. Because Mr. Anderson treated it as a 
plea ol insolvency and demurred therefrom, and he would not permit me to disabuse 
his mind ot the impressions Mr. Anderson made upon him. I never did believe he un¬ 
derstood the character of the plea. Therefore 1 think lie treated it as a simple plea of 
insolvency; whereas it is a distinct plea, under a different section of the code, and, ac¬ 
cording to law, throws upon the plaintiff the duty of bringing before the court the 
person who at the time had charge of the assets. 

Q. What becomes ot the assets of an estate by law when an administrator is ap¬ 
pointed under a decree ot insolvency ?■—A. It then is the right of the creditors to 
elect or select an administrator. That administrator demands and receives all the 
assets of the estate from the outgoing administrator. If the creditors fail to select one, 
the court, in its discretion, may continue the old administrator; or he may appoint 
another. In this case, though, the administrator, after reporting a report of insolv¬ 
ency, not intending to be continued, resigned, which he had the right to do. It then 
became the duty ot the court to appoint another, unless the creditors meet and elect 
one; and the court appointed the sheriff of Clarke County. One remark I wish to 
make. The facts set forth in the plea I received by letter. I have not been in Clarke 
County for a number of years, and the plea is filed from the information of my client. 


By Mr. Eldridge : 

Q. Was that plea verified in any form ?—A. No, sir; it is not a plea that requires 
verification under our practice. 


By Mr. Smith : 

Q. Have you had any opportunity to observe what relation Jacob Wilson bore to the 
court and to Judge Busteed? If so, state it.—A. I knew of no relation that lie hereto 
Judge Busteed. 

Q. State any facts you may know tending to show the relation of Jake Wilson to 
Judge Busteed. 

(Objected to by Judge Busteed. Objection sustained.) 

Question modified as follows: 

Q. State any facts you know concerning the relations of this man to Judge Busteed.— 
A. 1 have seen him on two or three occasions in the room, and doing errands for Judge 
Busteed. He remained with Judge Busteed when lie was here, and some portion of the 
time was waiting upon him, according to my recollection. I never knew' him engaged 
in any business, whatever he might have been, save but in attendance upon Judge 
Busteed. But I never inquired of Wilson what he was doing, nor of Judge Busteed 
what relation existed between them. 

Q. State any facts you may know, tending to show the manner of Judge Busteed in 
conducting the business of his court, and of his conduct to the bar. 

(Question not allowed; modified as follows:) 

Q. State any facts you may know of the manner of Judge Busteed in conducting the 
business of his court, and his conduct toward members of the bar f—A. The facts that 
I have stated in reference to the case Mr. Hall was engaged in, and the case that I re¬ 
ferred to, together with another fact that I will state. On one occasion there were 
some admiralty cases, and some or most of the witnesses—some of them—were steve¬ 
dores. They lived down the bay from twenty to twenty-five miles from here. They 
have to come up to the city in the morning, and go back at night. They could not 
get here at nine o’clock. It was the habit of Judge Busteed to open the district court 
at nine, call over the docket, take up the chancery docket, call over that, and take up 
the civil docket or common law docket. I requested him on one occasion, from the 
fact that these witnesses could not get here in time, to open the district court at ten 
o’clock. I do not remember his reply. That day at three o’clock he adjourned the 


454 


circuit court until the next clay at ten, and the district court until seven o’clock 
at night. I got here and came in, but there were no suitors. The dockets were called, 
first one and then the other; several members of the bar were present, but no business 
could be done, and the court adjourned. I remember that. When I combine that with 
these facts, it makes an impression upon my mind- , 

Mr. Bingham. You need not swear anything about the impression. 

Witness. I cannot state any other fact, unless it is connected with my impressions 
and opinions. 

Mr. Bingham. That we do not wish to hear. 

Witness. Or if I could state a little detached piece here and there, that I ooulcl not 
call to my mind, it would weigh nothing. 1 can give frankly my idea—well, I go fur¬ 
ther, and say my convictions- 

Mr. Bingham : 

Q. If you know how the docket was called, state it.—A. He usually called it in this 
way: In the morning he would take up the admiralty docket, and inquire if there 
were any ex parte motions to be made on it—no or yes. He would then take up the 
chancery docket, and inquire if there were any ex parte motions to be heard. This was 
the usual case, but I do not know that in this last case he did every day. Then he 
would call over the admiralty cases. Then he would proceed upon the common law 
docket, usually calling over all the cases on the docket every day. Sometimes, when 
engaged in the trial of a case, he did not. That was the course. I might here state a 
fact—but it is a mere matter of opinion, at least with him and myself—that, owing to 
the amount of business in the State courts, as in this court, (not a great deal in this 
court, though,) and the necessity of bringing witnesses from the country, he was 
strongly urged by several, myself amongst the rest, to set cases to be heard on a partic¬ 
ular day, at which time the witnesses living out in the country could be got here. He 
invariably refused that, and consequently, witnesses were sometimes compelled to re¬ 
main here a week or two, which was ruinous to their business. He never would yield 
to it. That course of proceeding could not be otherwise than oppressive, to the suitors 
and to the witnesses. 

Q. What is, and has been for many years, the practice in the State courts, before the 
war as well as since the war, as to setting cases for trial ? 

(Objected to by Judge Busteed, as wholly immaterial. Objection sustained.) 

Q. Have you answered all you desire to in response to the general question?—A. I 
know of no other fact. My intercourse with the court had been very limited, and after 
the trial of that case in which I withdrew from the court, I have never been in the 
court-room since. 

By Judge Busteed : 

Q. In what year was this suit of the Pensacola Railroad vs. Riley brought ?—A. I 
think it was brought at the December term of 1887, in the circuit court; or it may have 
been in 1866. I am not certain which. 

Q. Of course, being brought there, one of the parties must have been a foreign cor¬ 
poration; the plaintiff?—A. It was a foreign corporation. 

Q. That sought the jurisdiction of the circuit court of the United States for the dis¬ 
trict of Alabama?—A. I presume so; the suit was brought here. 

Q. Do you know what the answer in that suit was?—A. I never saw the record. 

Q. Do you know whether the answer involved the merits, or not ?—A. I never saw 
the record, never read it, and do not know what it is about. 

Q. You say Mr. Hall is dead.—A. Yes, sir. 

Q. When did he die ?—A. He died some three or four weeks ago. 

Q. He was a man very much given to drunkenness, was he not; public drunkenness, 
was he not?—A. He was given to fits of intoxication. 

Q. Publicly intoxicated ?—A. He did not keep private when he was drunk. 

Q. Was he not in the habit of going around the streets of Mobile, collecting a crowd 
of boys around him, and shouting, “Hurrah for Andy Johnson ?” 

(Objected to by Mr. Smith. Objection sustained.)' 

Q. You say in this case of Ford vs. Beckham, administrator, that you were not al¬ 
lowed to read the plea ?—A. I do. 

Q. And that the judge hadn’t read the plea; did you say that?—A. No, sir. 

Q. Was it not a rule of Judge Busteed’s court that copies of pleadings should be fur¬ 
nished to the court before the case was tried by him ?—A. Not furnished to him, as 1 
understood the rule ; I must answer the rule as I understand it. The original papers 
were not to be taken out of the clerk’s office ; they were never to be brought into court; 
copies were to be taken and the case was tried on copies, and when the case was called 
copies handed or furnished to the court; but I furnished none in this case that I re¬ 
member. 

Q. Will you say that in this case you had not complied with that rule of court—A. 
I say the rule had been complied with as I understood the rule. 




455 


Q. Did the disposition of your plea puis darrein continuance involve the merits of the 
case?—A. Not the merit of the debt, but the merit of the liability of the defendant. 

Q- W hat year "was the administrator in this case appointed by the probate court; do 
you know ?—A. I do not know. 

Q* W as it during any year ot the rebellion ?—A. It is impossible for me to answer 
that; but I can say this, and that will answer your question: William H. Beckham 
was alive in 1861, I know—the father, I mean ; but I know not when he‘died, nor when 
administration was granted. 

Q. W ill you say now that the question of his appointment, or the appointment of 
mi administrator by the rebel probate court, was not distinctly presented to Judge Bus- 
teed in that suit?—A. I know it was not. 

Q. By either side ?—A. Not by me. 

Q. By either side ?—A. If so, not in open court. 

Q. You are sure Mr. Anderson did not present that in open court, are you ?—A. I 
am. 

Q. You mean D. C. Anderson, who was district attorney ?—A. I do. 

Q. But the fact is that he had been, or must have been, appointed by the rebel pro¬ 
bate court?—A. He must have been appointed after the year 1861. 

Q. And before the year 1865 ?—A. No, I do not say that; for I do not know what year he 
died. I cannot tell; he was administrator when he was sued ; the writ will show when 
he was sued, but I do not know the year when he died, nor the year of the granting of 
the administration. 

Q. When Judge Busteed inquired, in this case of Ford vs. Beckham, administrator, 
whether a jury would be wanting, and you said you wanted no jury, and he told you to 
sign the paper waiving the jury, didn’t he, at the same time, state that the act of Congress 
required that waiver to be in writing before jurisdiction was had by the judge ?—A. I 
stated that, and will repeat it again in the precise language. Before that, you had in¬ 
quired if a jury would be wanted; I said it would depend upon wliat course was taken 
with the plea. Mr. Anderson replied that he should demur to it; I said then I wanted 
no jury ; before that it had been announced by Judge Busteed that in all cases where 
a jury was waived the waiver must be in writing. I understood that ruling. 

Q. Did he state that the waiver must be in writing in conformity to the statute of 
the United States ?—A. I do not recollect your interposing the word “ statute I only 
recollect you as I report you. My hesitation which elicited the angry threat- 

Q. You are not answering anything in response to me. State a single errand that 
you know that Jacob Wilson ever did or performed for Judge Busteed.—A. I can only 
give you my best recollection. I think I have seen him here in this room waiting on 
the judge; I may be wrong, for I say I do not know what his business was. 

Q. What act was he performing when you think you saw him waiting on Judge 
Busteed in this room; what act was he performing?—A. It is almost impossible to 
specify a particular act with certainty. I would have to speak from impression or 
recollection. I may speak wrongfully; therefore I do not like to answer it. You ask 
me what act. Such acts, according to my recollection, as tilling pitchers of water, and 
setting them on the sideboard. His presence here, andliis apparent treatment, impressed 
me with the belief that he was attending on you as your servant. Now, if I was wrong, 
I cannot help it. 

Q. Can you state any other act that you ever saw him perform for Judge Busteed 
as a servant, and can you state any errand you ever knew him to do forjudge Busteed ?— 
A. He never done any errand with me. 

Q. Can you state any errand he ever did with anybody—with Judge Busteed?—A. 
Not, but from hearsay. 

Q. Have you attended any meetings in Robert H. Smith’s office concerning these 
impeachment proceedings against Judge Busteed ?—A. I never attended a meeting in 
his office in my life, upon any business, at any time, and on any occasion. 

Q. Have you attended any such meetings at any other place ?—A. Never in the world, 
and have never spoken of the impeachment to half a dozen people in my life. 

By Mr. Loughhidge : 

Q. In relation to the first case you spoke of, where the defendant waived that three 
days’ time in that case, did you apply or ask for a continuance?—A. I was not en¬ 
gaged in the case ; it was Mr. Hall. 

Q. Did he ask for a continuance ?—A. Ho did. He asked to postpone it until Ihurs- 
day—it was on Monday—on which day the three days’ pleading would have expired. 

q. Did fie apply for a general continuance?—A. Yes, sir; he applied to continue it, 
or lay it over until Thursday ; but Judge Busteed gave him but one hour to get ready 

to try it in. , „ ,, , 

Q. Under the statute, could ho not apply for a general continuance for the term, 
showing cause?—A. No, sir. Under the statute and practice of Alabama, on Thursday 
the case would have stood for trial peremptorily, if cause for continuance had not been 
shown. 



456 


Q. But suppose that by affidavits he. showed cause for continuance ?—A. He did not 
do that, however. It came up in this way: Mr. Hall stated that owing to that rule 
of practice, allowing three days, he had not subpoenaed his witnesses; that they lived 
forty or fifty miles distant, but that he would have them here on Thursday ready for 
trial. 

Q. I understand that my question is this: In that state of the case could he not, 
under the statute of Alabama, have filed an affidavit showing surprise, and asked con¬ 
tinuance for the term?—A. There is no statute upon that subject. The rules of practice 
govern it, not the statute—that is, as to continuance. There is no specific statute that- 
would have any bearing upon the question propounded. 

By Mr. Smith : 

Q. State, on the occasion you refer to, whether Mr. Hall was drunk or sober, an 
what was his demeanor ? 

(Objected to by Judge Busteed. Objection overruled.) 

A. He was perfectly sober and respectful. 

Q. Have you ever seen him in the slightest degree intoxicated in Judge Busteed’s- 
court ? 

(Objected to by Judge Busteed, unless the witness is proved to be an expert. Objec¬ 
tion sustained.) 

Q. Did you ever hear of any meeting, large or small, being held in this town, in 
reference to Judge Busteed’s impeachment? 

(Objected to by Judge Busteed as immaterial. Objection sustained.) 

Mobile, Ala., June 7, 1869. 

J. Little Smith sworn and examined. 

By Mr. Smith : 

Question. Wliat is your business or profession ?—Answer. Attorney-at-law. 

Q. State what you know of the judicial conduct of Richard Busteed.—A. I know that 
he conducted his court so that it was impossible to obtain a fair administration of jus¬ 
tice in it, or a fair trial of causes ; I will state some facts; I will speak of what occurred 
to myself on one occasion; it was in a case entitled Elvin Pease vs. P. Iv. Dominique. 
The suit was for the use and occupation of land in the city of Mobile, and the com¬ 
plaint also contained an account for money had and received. I proved by the agent 
of the plaintiff, who had at one time been in possession of the land, that there was no 
relation of landlord and tenant at all; that the defendant claimed the land as his, and 
he surrendered it, and lie took it adversely from him, and not as landlord and tenant, 
or any relation of the kind. I examined the witness, and attempted to show, and did 
show, that there was no currency then in existence but Confederate States treasury 
notes; and I attempted to examine the witness to show what that currency sold at in 
the market, and what was the value of the rent in gold or in Confederate States treas¬ 
ury notes. Judge Busteed refused peremptorily to let the witness answer the question.. 
I varied my questions in every way that I could devise to get at that matter, and he 
would not allow the witness to answer any question on that subject, but required me 
to put another question, “ What was the worth in greenbacks or legal tenders.” He 
said, “ I do not know any circulation except that of the present government,” or words 
to that effect. 

Q. The only question he would allow was what it was worth in legal tenders?—A. 
Yes, sir; but the point is, there were no legal tenders at that time. I attempted to 
examine one or two witnesses in that way, and also attempted to examine—asked the 
question to show, and did show, that this land was held by the plaintiff under a ground 
lease, and that the rents on that ground lease fell due during the time that the defend¬ 
ant had possession and when he was sued for use and occupation. I also attempted to 
show that he paid the taxes on the land as an offset to any claim that might be made, 
and that he expended certain sums for repairs which were necessary for the preserva¬ 
tion of the property. Judge Busteed, in a manner that precluded all chance for any 
question of the kind, peremptorily refused to allow me to prove anything upon any one of 
these points. 1 finally called the third witness—I think it was—and then Judge Busteed 
says, “ Sir, I give you notice that you are not to ask this witness any such questions as 
yon have been asking ;” and did it in a manner very remarkable to me for a person on 
the bench, and in a manner I took to be very insulting. The witness was then on the 
stand. I then stopped a moment—the judge’s manner was so decided, and so rough 
about it—and then said, “Well, what will you do with me if I do?” He said, “I will 
commit you to jail if you ask any such questions of the witness.” I said, “If that is 
the case, it is impossible for me to proceed with the defense of my case, for that is my 
defense.” I felt very much outraged, and very much insulted, and got very angry at 
that. I was prepared to prove the facts that I wanted to make proof of. 1 had evidence 
of the tax payments. I had the person who collected the ground rent present, and the 
person who had done the repairs. 1 also attempted to show—on this same occasion 


457 


befoie tins interruption took place—that every dollar that had been received, as charged 
in the complaint, was in confederate money; and it was in both aspects that I Avas 
riyiiig to get at the value ot it. The judge prohibited any such examination also. The 
scene was a very stormy one during the whole time ; but 1 had conducted myself with 
proper demeanor and had determined that the man’s rights should be heard fairly. The 
manner of the judge to the witnesses was over-bearing and brow-beating. In that 
case I hi ought the affidavit ot Mr. Bass—one of the witnesses, and also of the defendant— 
into couit. Mr. Bass had stated it was so much in dollars—I think he said in cur- 
ienc\ speaking ot the rent prior to the war ; and it was to meet that point—when 
there was gold in circulation—that 1 was directing this examination. He stated in that 
affidavit, which I offered to lile, that in his statement he was asked the value of the 
rent in legal tender notes; but that he was speaking of the value—or intended to do 
so—in confederate notes, but that the noise and confusion was such in the trial that 
he did not understand the question, but meant to swear that it was in confederate notes. 
I then made an appeal to allow the case to be re-opened to show this state of facts. The 
judge was very decided about it, and peremptorily refused to hear anything on the 
subject. 

There was another occasion on which I think the judge’s conduct was not that of a 
judge upon the bench. It was a series of cases on one morning. Mr. Martin, the dis¬ 
trict attorney, stated in the court that his business before the grand jury compelled 
him to be absent, and lie would have to request some one to represent him. He spoke 
to me in an ordinary conversational tone, and asked me if I would represent him. I 
said 1 was perfectly willing to do so ; but that I had no definite knowledge of his cases, 
and had not prepared myself in relation to them. The judge then recognized me, and 
said he certainly would recognize any gentleman of Mr. Smith’s standing to represent 
him. The docket was called, and the first case that was called, I think, was the case 
of the United States vs. The steamer Mary, and another one against the steamer Red 
Gauntlet. Judge Busteed says, in rather an abrupt way, “Have these cases got any 
business on the admiralty docket ?” I said, “II - your honor please, I am not able to 
say; I find them here, and am ready to proceed.” He says, “Are they not proceedings 
under the act,” naming it, “ for the confiscation of Confederate States or abandoned 
property ? ” I said, “ 1 understand that they are.” He says, “ Well, sir, how comes it 
that these cases are not on the confiscation docket?” I said, “I am not prepared 
to say, sir, and I am not aware that there is any confiscation docket;” and I asked 
the clerk, in his hearing, if there was. He said no. He says, “It was your duty, 
sir, to see that they were put on the docket.” I said, “ 1 differ from your honor. I 
think if I came here to dictate to your clerk what books he should buy, and what 
dockets he should prepare, that you would treat it as entirely improper, if you did 
not punish me for it; ” and his language was, “ Sir, if I was your client, and you 
did not see that my cases were put on the proper docket, I would discharge you.” 
I said, jocularly, that “ we didn’t happen to own that relation.” Then some case, 
that 1 do not recollect with distinctness, was called, and something transpired in it 
about—my impression is that it was about the institution of certain proceedings by 
the district attorney against steamboats for running without having their boilers 
and machinery inspected by proper inspectors, as provided by a late law of the 
United States. And I said, “I cannot speak on that subject, except I find an order 
on such a page”—which I happened to see that morning—referring to it—“ where it 
seems to be sanctioned by you.” Ho then said, “ Yes, they wore properly instituted at 
the outset,” but that the remark particularly referred, I think, to the institution of 
the otherclass of cases, just along with it, that were for running boats without carrying 
cotton properly covered; and it was in connection with one or the other of these that 
he told me—he says, “Mr. Solicitor,” or “Mr. District Attorney, I require you to make 
up a transcript,” or a statement—statement was the language, I think—“of these 
proceedings,” or tins matter, “and report it to”—some department—“in Washington 
City.” “ Well,” I said, “ if your honor please, it don’t seem to fall within my duty, 
and I will have to decline.” And he says, “ Mr. District Attorney, sir, I require you to 
do it.” “ Well,” I said, “ if your honor please, I differ with you about my duties. 1 am 
here simply as the temporary representative of Mr. Martin, and if such is your con¬ 
struction of my duties, I cannot maintain the place any longer. 1 shall have to resign, 
if I am to be held in that way as district attorney.” He said, very politely, “ Very 
well, sir.” But his manner was very positive to me, in repeating to me to make out 
some statement, which I do not recollect now. Certainly it was no part of the case I 
was trying, but some incidental part of the case connected with it. I could not try 
the case at all. I therefore left, and Major St. Paul undertook to represent Mr. Martin, 
but the behavior of Judge Busteed was such that he could not proceed at all, and 1 
do not think that lie staid there more than five minutes, and then he went out. 

There is another case that I was connected with that struck me as a very outrageous 
proceeding. It was the case of the United States vs. The schooner Encarnaoeon and 

her cargo.” With Major St. Paul, 1 represented the claimant, who was --, I forget his 

name precisely. I was for an intervenor who was, I think, the claimant. The proof 



458 


tended to show that the schooner was driven into port, or that is what the papers 
show—she sailed for Matamoras, and came in under distress. The property, however, 
was seized by the custom-house officers, and a libel filed by the United States district 
attorney for the condemnation of the vessel and cargo, upon some allegation that it 
was not a bona fide driving in by stress of weather and leakage. A survey had been 
held by the officers of the port, and she had been condemned as leaking and author¬ 
ized to unship her cargo and repair; and the cargo was turned over to the collector 
of the customs. The collector put it in a place that he called a bonded warehouse, and 
represented as a bonded warehouse, which these parties had no instrumentality in at 
all, but had turned it over to the collector. Some considerable time had elapsed be¬ 
tween the seizure and the trial of the case. When it was called, a full statement was 
made, and the person there represented announced that he was ready and anxious to 
have his case tried; that he had been deprived of his property, in the absence of the 
court, about sixty or ninety days, and that he was extremely anxious to pursue his 
voyage to Matamoras. During the statement, Major St. Paul made a statement of the 
value of the cargo, which was considerable. Judge Busteed—Mr. Martin was repre¬ 
senting the United States—seemed disposed to urge a trial—to grant our request. 
Mr. Martin, the district attorney, made a very earnest appeal to have the case laid 
over, stating that he desired to obtain some information from Washington City, and 
was in correspondence with some branch of the government, and that he would obtain 
it. After a good deal of difficulty the judge, seeming to agree that it was a case of 
great hardship to hold the case longer in hand, set a certain day and notified the dis¬ 
trict attorney that he must try the case, and was very prompt about it, and he must 
get ready by that time. The judge said that, and, in fact, told him that if it was 
necessary he must dispatch to Washington for the necessary information so as to have 
it here. On one morning, I think Wednesday, but within two or three days of the 
day set for the trial, and after the witnesses for the government had arrived, and I had 
fixed my cases in the circuit court of the State, on the announcement that this case of 
his was to be taken up on Friday—on this very morning I had set a very important 
case to try; under that state of things, just as I was about going to the court to enter 
in the trial of my case, Mr. Martin rose and said : “ I give the gentleman notice that 
I shall move to sell this property, cargo and vessel, as perishable, at once.” “Well,” I 
said, “ if your honor please, I have already entered into engagements in the other 
court upon the action of this court, and 1 hope that the motion will be postponed, es¬ 
pecially in view of the fact that within three days of this time the case is set for trial 
on its merits.” “And,” I said, “under these circumstances, it seems to me a very re¬ 
markable motion to be made.” He says, “ Not at all, sir; there is nothing remarkable in 
any motion to sell perishable property in this court; it is an every-day thing.” I said, 
“ I am perfectly aware of that, but the point is that the motion must be pressed and 
urged for sale to-day, when I have my other engagements made, and when the case is 
to be tried on its merits in three days from this time. I state furthermore that I am 
prepared to prove that this property.is not perishable, and cannot certainly perish in 
three days, the action already having held it ninety days,” and proposed to show what 
the cargo was. The judge then said to me, “Well, Mr. Smith, suppose you say 12 
o’clock.” I said, “That won’t relieve me unless I can get the parties in the court below,” 
the State court, “ to yield to that demand, because I am already engaged in the case.” 
“Well,” he said, “Mr. Smith, it is a matter of accommodation for you, and we will 
set it for 1.” 1 told him my case would take the whole day. Then lie said I would 
have to be ready for the motion. I told him I could not get ready as to witnesses, as to 
the character of the property, &c., but still that was the order. We came, and I in¬ 
troduced proof of what I stated, that the cargo consisted of cigars, of jellies,- 

Judge Busteed. I object to the statement of the contents of affidavits. 

Witness. -and of other things, as appears by affidavits on file in the clerk’s 

office. I then showed, by the United States marshal, that he had these effects in his 
custody; that they were in the same place that they had been- 

Judge Busteed. I object to all this. 

Witness. I called the marshal as a witness on the stand and examined him to show 
that the cargo had been in his possession since its seizure under this process; that it 
was stored in the same place that it had been stored in; that he had it under guard, 
and that it was in no more risk than it had been in since the time of its seizure. I then 
earnestly, upon that, urged the court, and Major St. Paul did, that a forced sale would 
ruin this man, would deprive him of all his property, and that the same thing could be 
accomplished when the merits of the case were made. He refused it, and entered an 
order of sale of the property, to be sold within a very short time. He overruled my 
motion for delay and ordered the property sold. That is the only connection I know 
of as regards Judge Busteed with it. I know the subsequent history of the case. 

By Mr. Eldridge : 

Q. Do you know of any motive in the world that the judge could have had, to 
do anything but what was right in the case? Do you know that the judge had any 
interest or motive to do injustice—any fact?—A. I do not know any fact about it. 





459 


Q. Can jou give any fact upon which we can judge?—A. The only fact that I can 
n.unc is the delay that attended the disbursement of moneys that came into the court. 

Vi- YVas the property sold?—A. No, sir. It was not sold. 

Q. Was there any time fixed for the sale?—A. Yes, sir. 

Q, Is that in the order which you furnish?—A. Yes, sir. It ought to be. I haven't 
examined the records since the case occurred. There was an order made or announced. 

1 id the order fix the time of sale ?—A. Yes, sir. I still urged for a delay in that 
salt, so that the trial might be heard and the sale avoided—so that I might have it set 
nude it the property was not condemned on the merits, and that was ref used. I do not 
let all to mind any other particular case now, but the general behavior of the iud (r o on 
the bench was domineering and overbearing 

By Mr. Smith : 

Q. Have you observed Judge Busteed’s conduct in this court in the management of 
the business of his court, and his conduct toward the bar? and if so, state the facts in 
relation thereto.—A. I never knew anybody to gain a case when Mr. Andrews was 
employed upon the other side, in Judge Busteed’s court. It was general, however, that 
whenever he was employed in a suit lie gained his case. 

Q. Do you refer to Rufus Andrews?—A. Yes, sir. 

Q. State who Rufus Andrews was.—A. A lawyer from New York who came herewith 
Judge Busteed. 

Q. Did he have any law office here ? 

(Objected to by Judge Busteed. Objection sustained.) 

Q. Did you kuow Jake Wilson?—A. Yes, sir. 

Q. State who he was, and what his relations were to Judge Busteed.—A. From his 
language, (from Jake Wilson’s,) his manners were very coarse and vulgar, and lit* 
seemed to be the mau-of-all-work about Judge Busteed—iiis body* servant. 

By Judge Busteed : 

Q. In this case of Pease vs. Dominique isn’t it the fact that Dominique held posses¬ 
sion of this land in Mobile by virtue of a deed from you?—A. Yes. Not from me 
individually. 

Q. By virtue of a deed from you as receiver of the rebel States sequestrated property, 
was it not ?—A. Yes, sir. 

Q. And that sequestrated property the property of loyal citizens of the United 
States?—A. Sold on that ground, after condemnation in the so-called Confederate 
States court, and by its order. 

Q. You were that receiver ?—A. I was. 

Q. Who was your legal counsel, or who acted as your counsel in that capacity ; did you 
have any counsel ?—A. I do not think I had. 1 certainly never paid anybody any¬ 
thing. 

Q. Didn’t Robert H. Smith, your brother, act as your legal adviser in that capacity ? 
A. No, sir. 

Q. This was an action brought by the plaintiff to recover possession of his property 
in Mobile, sold *by you as receiver of sequestrated property of loyal citizens of the 
United States under the sequestration decree of the rebel court in Mobile?—A. No, 
sir; it was not. It was for the use and occupation of land of which he had already 
entered into possession by surrender of the parties that he sued. 

Q. When was the surrender of the property made ?—A. At the termination of the 
late war between the United States and the southern or Confederate States. 

Q. And this was an action for the value of the use and occupation during the term 
he had held it ?—A. Yes, sir, partly, and partly for money had and received by the 
defendant to his use. 

Q. The taxes which you speak of, which you endeavored to prove as paid, were taxes 
which were due and paid to the rebel State of Alabama ?—A. And some of it to the 
city of Mobile. 

Q. While the State was in a state of rebellion ?-—A. Yes, sir. 

Q. And it was these taxes which the court would not allow proof to be given of as 
an offset to the claim of the plaintiff for the use and occupation?—A. Yes, sir; or in 
reduction of that claim. 

By Mr. Loucuipudge: 

Q. Was the city of Mobile under the rebel government at that time?—A. Yes, sir. 

By Judge Busteed : 

Q. You say you finally called the third witness, you think it was. Was it not the 
fourth witness ?—A. My recollection is that it was the third. 

Q. Will you be willing to say accurately that it was not the fourth ?—A. My belief 
is that it was the third ; that is my memory. 

Q. You say that the manner of the judge in that case was overbearing to the wit¬ 
nesses ?—A. Yes, sir. 


460 


Q. What witnesses was he overbearing with?—A. He was overbearing with the 
defendant, P. K. Dominique. 

Is he a resident of Mobile still ?—A. Yes, sir. 

Q. He was your client in the case ?—A. Yes, sir. 

(,,). To what other witness in that case was the judge overbearing in his manners 
to ?—A. To this Mr. Boss. 

Q. What is Bass’s first name ?—A. I think E. Bass is his name. 

Q. Does he reside in Mobile?—A. He did. I do not know now where he does reside. 

Q. Where did he reside then—in Mobile?—A. I do not know. He was a witness 
called by the other side. 

Q. Can you state what offensive language was employed by the judge to Dom¬ 
inique?—A. No, sir. It consisted in the blustering manner, and the refusal to let him 
answer. . 

Q. Can you state what offensive language the judge used to Bass?—A. No, sir. 

Q. When the judge told you lie would imprison you did he not state as for contempt 
of court?—A. No, sir. When I asked you what you would do if I went on to conduct 
my case, your language was, “ I will commit you to prison, ’ or “ imprison you.” 

Q. Didn’t you say that would be very uncomfortable? That was your answer, 
wasn’t it?—A. Yes, sir; in substance. 

Q. And in language, also, wasn't it?—A. It may be it was worded to that effect, and 
probably those words. 

Q. Didn’t you upon that occasion, and immediately upon that, go to your brother, 
Robert H. Smith, and ask him if he had a pistol?—A. I stopped a very short time, at 
a loss to know wliat 1 should do. I did then go to my brother who was seated across the 
table, and I leaned over the table and whispered in his ear and asked him if he had a 
pistol, and if so to give it to me under the table—to give it to me. 

Q. What did you want of a pistol in court then ?—A. I wanted to assert my rights to 
examine witnesses in the defense of the case. 

Q. With a pistol?—A. No, sir. But I intended if I had done that, and was prepared 
to defend myself, not to submit to the commitment. 

Q. By shooting the officer or the judge, which?—A. I think it most likely that I 
would have shot you. 

Q. On the next day, in this case of Pease vs. Dominique, you say that the judge was 
very decided about it, and peremptorily refused to listen to anything on the subject. 
Now do you mean that ?—A. No ; he listened to my statement, but made the decision 
peremptorily. 

Q. You read your affidavit, didn’t you ?—A. Yes, sir. 

Q. And applied for a new trial ?—A. Yes, sir. 

Q. And argued it at as much length as you chose?—A. Yes, sir. 

Q. And then I peremptorily denied it ?—A. Yes, sir. 

Q. In the steamboat cases of which you have spoken, and in relation to which you 
at one time undertook to appear for Martin, the then district attorney, do you not 
know as a matter of fact that Martin had gotten some $3,000 from Price Wilson, or 
the Mobile Freight Company, by filing libels, and settling them out of court at a hun¬ 
dred dollars apiece?—A. No, sir. All I know about that is what 1 heard stated. I do 
not know anything about it. 

Q. Were you not Martin’s lawyer—or your brother? Which was it?—A. Ido not 
know. 

Q. Mr. Robert II. Smith was in those cases ? 

Mr. Robert H. Smith. I wish to make a statement in regard to that. Mr. Boyles 
made a motion against Martin to compel him to pay over some money which he alleged 
he had obtained from libels of steamboats. Mr. Martin employed me to defend that 
particular case—the only professional relation I ever bore to him, except to defend him 
on the charge of shooting you. I told him I would argue his case on the demurrer, 
and that I would not try it any further. I told him that his coming into my office 
was involving me in my relations with you ; that I had enough to do to take care of 
my own business, and that I did not wish him to come there either for consultation or 
business, but that 1 would argue that demurrer; and you remember very well the per¬ 
tinacity with which I refused to go any further than that. 

Judge Busteed. 1 do. 

By Judge Busteed: 

Q. In this case of the United States vs. The Schooner Encarnacion, in which you 
think the conduct of Judge Busteed was overbearing, that was a libel tiled by the col¬ 
lector of customs at this port?—A. At his instance? Yes, sir. 

Q. And Martin was then district attorney ?—A. Yes, sir. 

Q. And as attorney of record for one of the parties you appeared, didn’t you ?— A. 
Yes, sir. 

Q. What was your client’s name—the Italian ?—A. He was a Spaniard. 1 think it 
was Lange. 


461 


Do you not know that the district attorney in that advised the seizure of that 
vessel at firstA. No, sir; my recollection is that lie did not. My knowledge of the 
case is that he did not. 

(N Do j ou know whether or not the Secretary of the Treasury wrote to the district 
attorney, requiring him to send his reasons to Washington for first having advised the 
seizure ot the vessel, and then advising the party to give her up ?—A. No' sir. I know 
that the collector of customs, in the absence of any district attorney, stated to me 
tildt lie lin.d icccixcd instructions from Washington to seize tlie vessel, and asked me 
what to do—as a mere attorney. I told him he was the proper officer to institute pro¬ 
ceedings, and he said he did not think the vessel was subject to seizure at all; but 
what must he do ? I told him to obey his instructions; seize the vessel, and immedi¬ 
ately report it to the United States district attorney: that it was his business to prose¬ 
cute the suit. 

Q. Do you not know that, on the subject of that seizure and sale, the Treasury De¬ 
partment sent two persons from Washington to Mobile, one named Frederick Chase, 
and the other, I think, McNall, or some other name like that?—A. There were two 
agents came here two days before this motion (they were here at that time) was 
made; but 1 do not know their names. 

Q. Don’t you know that when this motion was made to sell this cargo, and granted 
by Judge Bustecd, as you have stated, that both Chase and McNall were in court?— 
A. They were. 

Q. Don’t you know that the affidavit upon which the order of sale was founded was 
made by Chase, this Treasury agent?—A. 1 do not recollect. Well, perhaps it was. It 
was one of them, I think. 1 think it was. 

Judge Busteed. I otfer the following certified copy of the affidavit in this case: 

The United States ) 

vs. > 

The Schooner Encarnacion and Cargo. ) 

United States District Court, December Term. 

Frederic Chase, being duly sworn, deposes and says : That he has examined the 
merchandise, said to comprise the cargo of the said schooner, now stored in ware¬ 
house on Commerce street, near Shipper’s press, in the city of Mobile, known as tho 
E. C. Elmore bonded warehouse ; that it consists of barrels, said to contain whisky; 
demijohns, said to contain giu, and some of which are empty; and boxes, said to con¬ 
tain cigars and jellies, or comfits. That he finds the barrels hooped with wooden 
hoops, some of which are broken ; and that he is informed and believes that consider¬ 
able leakage has taken place from their contents. He is also informed, and believes, 
that both the cigars and jellies, or comfits, are eminently liable to deterioration, pecu¬ 
liarly so in their present condition. The warehouse in which the cargo is stored is a 
house of one story, not fitted for the safe custody of the same, having, on the south, a 
steam cotton-press communicating with it by double doors, insecurely fastened, and 
on the north side, as he is informed, a house used to contain a steam fire-engine. The 
roof of the said warehouse is of wood, and covered, as he is informed and believes, 
with slate. Toward the east and west are large double doors, and windows opening 
from the said warehouse, insecurely closed and fastened. 

FREDERIC CHASE. 


Sworn to and subscribed before me, this 24tli day of December, 1867. 

N. W. TRIMBLE, Clerk. 


Filed December 24tli, 1867. 


N. AY. TRIMBLE, Clerk. 


A true copy: 


N. AY. TRIMBLE, 

Clerk United Stales District Court Southern District Alabama. 


[The witness says he believes the paper shown is from the original affidavit.] 

Judge Busteed. I offer, in this connection, a certified copy of the order of sale in 
this case, as follows: 

Southern District of Alabama, District Court of the United States for said District. 

United States ) 

vs. > 

Schooner Encarnacion. ) 

The President of the United States of America to the Marshal of the Southern District of 

Alabama : 

AVhereas a libel was filed in tho district court of the United States for the southern 
district of Alabama, on the 3d day of October, 1867, by L. A r . B. Martin, United States 


462 


district attorney for said district, against the schooner Encarnacion, her tackle, apparel, 
and furniture and cargo, and praying that the same may be sold as forfeited to the 
United States, for the causes set forth in said libel; .and whereas the said schooner 
and cargo have been attached by the process issued out of said district court, in pur¬ 
suance of the said libel, and are now in custody by virtue thereof; and such proceed¬ 
ings have been thereupon had that by the interlocutory sentence and decree of the 
said court in this cause made and pronounced on the 24th day of December, 1867, 
the said cargo of the said schooner was ordered to be sold by you, the said marshal, 
after giving six days’ notice of such sale, according to law, in all the daily newspapers 
of Mobile, and the Nationalist, and in two of the daily newspapers of the city of New 
Orleans: 

Therefore, you, the said marshal, are hereby commanded to cause the said cargo of 
the said schooner so ordered to be sold, to be sold in manner and form upon the no¬ 
tices, and at the time and place required by law, and that you have the moneys arriv¬ 
ing from such sales in said court, at the city of Mobile, on the 1st Monday in January, 
1867, and that you then pay the same to the clerk of the court; and have you also 
then and there this writ. 

Witness the Honorable Richard Busteed, judge of the district court for the State of 
Alabama, this 25th day of December, in the year of our Lord A. D. 1867. 

N. W. TRIMBLE, Clerk. 

Issued December 25, 1867. 

N. W. TRIMBLE, Cleric. 

Received December 25,1867. Returned this 31st day of December, 1867, the property 
having been released by order of court. 

R. W. HEALY, 

United States Marshal. 

A true copy: 

N. W. TRIMBLE, 

Clerk United States District Court Southern District Alabama. 

By Judge Busteed: 

Q. Do you not know that the reason the cargo was not sold pursuant to the order 
of sale was, that Lange, the owner, made a written proposition of settlement to these 
two treasury agents, which proposition was submitted to the court, and is now upon 
the files ?—A. Yes, sir; because the agents solicited that he should settle it, and he 
consented to it against my earnest recommendation, to prevent a sacrifice of his pro¬ 
perty at public sale instead of at private sale, as the only remedy left him. I know 
that these agents repeatedly and urgently begged him, and persuaded him to make 
that settlement, and I replied to them that I would report their actions to Washington 
City, or that I would see that it was done, and that I would also report it to the Mex¬ 
ican consul here, who was then representing that government. 

Judge Busteed. I also offer and put in evidence the certified copy of the proposi¬ 
tion of settlement made by Lange, as follows: 


“Mobile, December 26, 1867. 

•• Gentlemen : Some time in September last, and before any legal proceedings had 
been taken against the schooner Encarnaceon and cargo, I made to the collector of 
customs at this port an application to enter the said cargo in an American port, as the 
ship’s voyage to Matamoras had been broken by a change in the political condition of 
the country. 

“ I now renew the proposition as follows: 

u 1* f 0 pay all duties which may remain unpaid on the sugar which, in order to pay 
repairs and re-equip the vessel, had been permitted to be sold. The balance of duties 
(if any) being simply the result of a miscalculation in averaging the weights. 

“2. Io enter in bonds, in the usual form of law, the remaining cargo, to wit: whis¬ 
kies, gins, cigars, and sweet-meats, quantities as follows: whisky, 100 barrels; <>in 
1,000 gallons; cigars, 350,000, and 44 boxes jellies. The gins, having been originally 
intended for the Mexican market, are now in 200 demijohns, and would have to be put 
in proper packages, which would require a further entry of two hundred demijohns. 

“ 3. The entry in bond to be secured by the proper securities, and the duties to be paid 
in the usual course as the goods are withdrawn. 

“4. I he costs ot court in the case now pending before the United States district court 
to be paid by me, and the vessel and cargo to waive all claims to damages a<>ainst the 
United States and its officers. ° 

•>. On the se conditions, as suggested by you, to authorize the immediate release of 
the vessel and cargo, will consider t he matter satisfactorily arranged. 

“I remain, gentlemen, your obedient servant 

u .IT tt if xt T. r . “ L. LANGE. 

“Messrs. M m. McNall and Frederic Chase, 

“ Special Agents Treasury Department. 


463 


“Mobile, Ala., December 26, 1867. 

Sir . I ho propositions tendered to us by you on the preceding pages of this sheet 
aie, by irtue ot authority conferred upon us by the Treasury Department, accepted in 
its behalf. 

“ T . lie distr | ct attorney will be requested to cease proceedings upon the libel now 
pending against the schooner Encarnaceon and cargo in the United States district 
couit at Mobile, when the duties shall have been secured on the cargo, according to 
law, the costs paid, and proper waivers executed. 

“ The collector of customs will also be instructed to receive the entry, and to permit 
such changes to be made in the gin packages, under suspension of customs officers, as 
may be necessary to make a legal entry of it to be made. 

“ Very truly, yours, 

“ FRED. CHASE, 

“WM. M. McNALL, 

“Agents authorized by the Treasury Department. 

“L. Lange, Esq., Present. 


“ Filed December 27, 1867. 


“A true copy: 


“ N. W. TRIMBLE, Clerk. 
“N. W. TRIMBLE, 

“ Clerk U. S. Dist. Court, Southern Disk Ala.” 


By Judge Busteed: 

Q. Do you not know that there was a very general suspicion in the minds of 
these treasury agents and of the court that both the collector and the district attorney 
had more to do with this seizure than honestly belonged to either of their offices ?— 
A. I do not think I do. I know I do not. I believe you sent for the collector and had 
a conversation with him on the stand, which seemed to be a very friendly one. 

Q. And you do not know that that suspicion existed in the minds of those treasury 
agents '?—A. No, sir; because I had no conversation with them to that effect. 

Q. Don’t you know that Lange threatened to shoot the judge in court if he made the 
order of sale in that case ?—A. No; on the contrary, I know what he did do. Lange said 
that he felt that it was an entire destruction of his property without cause; and he 
did say on the street that—after the order of sale, and under a feeling of great exas¬ 
peration—that he would challenge the judge for having sacrificed his property withoul 
reason. I told him it was an absurdity to say such a thing, and that he must not think 
of such a thing. 

Q. You mean challenge him to fight a duel ?—A. Yes, sir. 

Q. You say you never knew any person to gain a case before Judge Busteed when 
Mr. Andrews was on the other side?—A. I do not know of any case. 

Q. Do you not know, or do you know, that in several cases Mr. Andrews secured ver¬ 
dicts from the jury against the rulings of Judge Busteed, and in two criminal cases?— 
A. I was not present. 

Q. In which Percy Walker of this city appeared with him ?—A. I was not present. 

Q. Until 1868, and the May term at Mobile of the circuit court, had Judge Busteed 
and yourself had any personal unfriendliness ?—A. No, sir; not at all. On the contrary, 
you had been rather more courteous to me, individually, than to most of the members of 
the bar, and had expressed friendly feelings. The first time any difficulty occurred 
was when I undertook to represent Mr. Martin, and then I was treated so rudely, as 1 
considered it, that our relations changed. 

Q. The relations of yourself and Judge Busteed were of rather an intimate charac¬ 
ter ?—A. Rather; but then I saw it was impossible to keep on intimate terms with 

him. 

Q. What do you mean when you say, when speaking of the relations of Jacob Wilson 
to Judge Busteed, that ho seemed to be a man-of-all-work for the judge ?—A. He was 
"•enerallv found about your room, and also around the court-room, and seemed to be 
subject to your orders, and to follow them implicitly. 

Q. What orders do you know of yourself, that Judge Busteed ever gave to Jacob 
Wilson to execute ?— A. Well, I cannot name an order, but there are a great many 
menial offices around you, such as I would order a servant to perform if he was with 

m Q. Name a single menial office that Wilson ever performed for Judge Busteed?—A 
You frequently ordered him, in the manner of a servant, to get ice-water, or get some¬ 
thing to drink—to go off on messages for him—to get out the sugar. “Jake, get out 
the sugar, and give us a drink. 

Q. Where were those orders given ?—A. In this room. 

O. You spoke about Wilson being the body-servant of Judge Busteed. What do you 
mean to imply by the use of that phrase?—A. I mean that he waited and attended on 


464 


your person, and performed whatever you ordered liim to do for your convenience. I 
saw him repeatedly about your bed-room, and he seemed to be looking after it. 

Q. Did you ever see him black the judge’s boots?—A. No, sir. 

Q. Did you ever sec him brush the judge’s clothes?—A. No, sir; I never saw you 
dressing, or when you were going out. 

Q. Did you ever see him make his bed ?—A. I cannot answer you about that because I am 
not sure; because when you had your bed in this room, I think 1 have in some cases, 
but I will not swear to it; perhaps not make it fully, but when it would become 
rumpled he would fix it for you to lie down. 

Q. Wasn’t Judge Busteed attended by a negro man whose name was Frank, that he 
had in the army with him, and that he brought from his northern home with him ?— 
A. Indeed I did not see him about here. I saw' a negro occasionally about the court¬ 
house. 

Q. You recollect Frank, don’t you?—A. No, sir; but I think Jake Wilson is the man 
who was generally here. 

Q. And you say the manners of Jacob were very coarse and vulgar?—A. Yes, sir; 
decidedly so. 

Q. The personal and social communication of Judge Busteed with yourself was neither 
coarse nor vulgar, was it ?—A. No, sir. 

Q. Do you know' of any associations of Judge Busteed, aside from those which you 
say Wilson had, w'ith any man whose manners w'ere very coarse and vulgar, in this 
town or elsewhere ?—A. I do not think I do. 

Q. Do you recollect that Judge Busteed was shot by Martin, on the 29th of December, 
1867 ?—A. I do not recollect the date, but I presume that is the correct date. I recol¬ 
lect you were shot. 

Q. Will you say that on the day before Judge Busteed was shot by Martin you had 
not seen Martin, and that Martin did not indicate his intention to shoot him?—A. On 
the contrary. I had heard Martin intimate something of the kind ; that he was very 
angry, and as if he was in a condition to do it; and I told him that that thing was 
not to be done. 

Q. Did you communicate to Judge Busteed the threat of Martin ?—A. No, sir; I had 
no idea Martin w as going to shoot you then ; but I thought it likely there might be a 
difficulty some time and he might shoot you. 

Q. Where ; in court ?—A. Yes, sir; wherever you came in contact w’ith him. 

Q. Did I ever come in contact with him anywhere except in court; and if so, w'liere?— 
A. I do not know. 

Q. After the judge was shot by Martin, didn’t you express your gratification that 
he was shot ?—A. No; I think I said that if lie was fool enough to shoot you he ought 
to have killed you. 

Q. Didn’t you express your personal gratification that Martin had shot Judge Bus¬ 
teed?—A. I do not know. The thing might have occurred, but I am not prepared to 
sw'ear that I did. 

Q. Will you say that you did not ?—A. No, 1 won’t say that, because it is highly proba¬ 
ble I might have said it; because I think it would have been a good thing for the 
country. 

b>. If what ?—A. Because I think it would have been a good thing for the country if 
you had been killed. 

Q. What part of the country do you mean in that connection?—A. That part over 
w'hich you administered justice in this State. 

Q. Prior to 1860, did you take the oath of allegiance to support the Constitution of 
the United States?—A. I reckon I did as attorney-at-law'. 

Q. Subsequent to 1860, did you violate that oath ?—A. Not that I am aware of. 

Q. Subsequent to 1860, did you engage in armed rebellion against the United 
States?—A. Yes, sir; I did. 

I beg to change my answer in this way: I engaged in sustaining the cause which 
was known as the confederate cause. I do not choose to put my construction on it in 
the way you have put the question. It is a difference of judgment or conscience. 

By Mr. Smith: 

Q. When you were asked if Chase and McNall were in court when the motion was 
made, you were about to say something, and were stopped by Judge Busteed. Explain 
what you meant to say.—A. As I started to go out both these parties stopped me and 
urged me to persuade this gentleman to enter the case in bond here. 

By Mr. LouGiikidge : 

Q. Did Judge Busteed hear this?—A. I do not know whether he did or not. 

Witness. They said, in substance, “you better persuade Mr. Lange,” or whatever 
his name was, “to enter this case in bond, and Ave will settle it all, and shall not sell 
his property.” I said he has a perfect right to sell his goods or put them in bond, and 
I said 1 would report them to the Treasury Department for their conduct, and also to 
the Mexican consul. * 


465 


By Mr. Smith : 

Q. When you came ancl asked me if I had a pistol, what reply did I make to you f 

(Objected to by Judge Busteed. Objection sustained.) 

Q* Did you obtain a pistol from me when you applied for one, as stated before?_A. 

I did not. 

Q. What was Judge Busteed’s manner to you that caused you to do that ? State 
specifically. 

(Objected to by Judge Busteed, on the ground that the witness has been fully ex¬ 
amined on this point. Objection overruled.) 

A. He leaned forward from his seat; the expression of his face was one of excitement 
and anger; and his tone of voice was loud. 

Q. l)o you know whether it was Judge Busteed’s habit to go into that court-room 
with pistols belted around him?—A. No; I do not. 

Witness. I wish to correct so much of my testimony as relates to the statement con¬ 
cerning the motion to postpone the sale of the cargo and vessel in the case of the 
Encarnacion. It should be that he would either postpone the sale, or make some order 
for a peremptory hearing of the cast; on the merits before the sale. 


Mobile, Ala., June 8, 1869. 

William G. Jones sworn and examined. 

By Mr. Smith : 

Question. Tell what you know of the judicial conduct of Judge Busteed?—Answer. 
The question is so general that I find a difficulty in answering it. I can state that the 
practice in the court was very different from any I have ever been accustomed to in 
Alabama. I think that I have Avitnessed several occasions on Avhich the manner of 
the judge towards members of the bar and to witnesses was peremptory and dicta¬ 
torial. On many other occasions his manner was courteous and polite; but occasion¬ 
ally lie Avas peremptory and dictatorial, both to members of the bar and to witnesses 
under examination. I have several times been in court Avhen the judge would not per¬ 
mit the lawyer to ask the witness a direct question, but Avould always require it to be 
put through him ; Avould tell the Avitness u Don’t answer any question until I put it to 
you ;” and generally, and very frequently, lie Avrote down the question himself; didn’t 
permit the lawyer to ask the witness the direct question; that is, the lawyer would 
state it to the court and the court would propound it to the witness. That was entirely 
different from any practice that I had ever been accustomed to. The lawyer, in my 
practice, had ahvays asked the Avitness the question. 

Q. Have you anything more to say ?—A. Not unless I Avould go on to specify some 
instances in which I thought the judge was very harsh to lawyers. 

Mr. Bingham. If you have any specific facts, that you know of his saying or doing, 
state them. 

Witness. There was one occasion on Avhich I think he Avas very peremptory to 
Judge Dargan. 1 cannot remember exactly what was said. I Avas in the court-house, 
and it struck me as being a very offensive course of proceeding to Judge Dargan. I 
cannot give the exact Avords that Avere used, and can only state that it made an 
impression upon my mind. 

By Mr. Eldridge : 

Q. Do you recollect the case that it was in ?—A. No; I do not. 1 was not in the case 
myself, and only happened to be in court. 

Q. Do you know Avhat the case Avas about ?—A. I do not remember that even. I 
think on the occasion when there Avas a difficulty between Mr. Smith here and Judge 
Busteed, that the judge’s manner to him Avas extremely harsh and offensive—quite 
harsh and offensive. 

By Mr. Bingham : 

O. State what he said and did.—A. I happened to go into court Avhile the case was 
o-oijio- on in which Mr. K. H. Smith appeared as counsel. It Avas a habeas corpus case, 
and Mr. Smith appeared for the prosecution—represented the State. Without know- 
in"- the particulars of the case, I learned in general terms that it Avas a case in which an 
indictment had been found against a party and lie had been arrested. The indictment 
had been found in the State court in Butler County, and he was in custody, and Avas 
brought before Judge Busteed on a writ of habeas corpus. I came in shortly before Mr. 
Smith withdrew from the case. The principal Avitness for the State was under exami¬ 
nation at the time. I think Avlien I came in they were examining him in relation to 
some written document which lie Avas called upon to prove or to acknowledge. The 
witness Avished to read the document, and the judge insisted very positively upon his 
aiiAveriii"- Avlietlier it Avas the document that he had executed or signed without his 
readiii"’ ft. And Mr. Smith rose—as I understood from the mere commencement of his 
remarks_to state some ground Avliy the Avitness should be allowed to read the document 

31 B 


466 


to be able to identify it, and the judge ordered liim in a very positive and peremptory 
manner to take liis seat, and would not allow any remark to he made, hut required 
the witness to state whether he executed that document. I think the witness said that 
was his signature, yet wanted to read it over to see if there ha<jl been any changes 
made. I think on that occasion the judge’s deportment to counsel and witnesses was 
quite harsh. 

By Mr. Eldridge : 

Q. When the witness said he wanted an opportunity to read it to see whether it was 
changed or not, wliat was the remark of the judge?—A. I think the judge told him to 
look at the signature ; said, “ You can tell that; you know your own handwriting; that 
was all you were asked; did you sign that document?” or something of that sort. A 
few moments after Mr. Smith had taken his seat, he rose to make some statement or 
argument, and he was ordered in a very peremptory manner to take his seat. I do not 
know whether anything occurred in the interval or not. He then stated that the pro¬ 
ceeding was a mere act of justice, and his self-respect would prevent him from taking 
any more part in it; and thereupon he got up, took his bundle of papers, and left the 
court-room. 

Q. Was that in answer to anything the judge had said ?—A. I think it was in response 
to the judge’s refusal to allow him to make any argument, or to allow the witness to 
read the paper, before ordering him to take his seat. 

By Mr. Bingham : 

Q. Do you remember anything the judge stated at all on that occasion to Mr. Smith 
except to order him to take his seat ?—A. I cannot remember any words. I do not 
remember the words that he used. 

By Mr. Eldridge : 

Q. Did he say anything else ?—A. Yes; there were several remarks made, but I do 
not remember what they were. 

By Mr. Smith : 

Q. State what was my manner and demeanor to the court.—A. As far as I observed, 
Mr. Smith’s manner was very self-possessed. He seemed somewhat excited at that 
moment; he seemed to give way suddenly. 

Q. Up to that time what was my manner and demeanor to the court ?—A. It seemed 
to be entirely respectful, as I noticed. I came in but a few minutes before the circum¬ 
stances I have mentioned occurred. As far as I observed or saw anything there was 
nothing disrespectful on the part of Mr. Smith. 

By Mr. Eldridge : 

Q. Do you remember anything else on the part of Judge Busteed that was domineer¬ 
ing or peremptory, as you style it, excepting to tell Mr. Smith to take his seat ?—A. 1 
think his manner to the witness was. The witness appeared to be quite a plain, common 
man, but one who was very much self-possessed; and the manner of the judge to the 
witness struck me as being very harsh to a man of that character. The witness once 
or twice manifested a desire to look over the paper, and the judge insisted—two or 
three times, I think—that he should answer at once—“ The question is a plain one ; 
there is the paper; is that your signature? that is what you have got to say; that is 
the question that is asked you.” 

Q. What did the witness say to that?—A. I am not sure, but I think the witness 
said (I cannot pretend to give the exact words) that he would have to look over the 
paper and see if it was the paper he executed or not. He said that was his signature. 

Q. The witness swore that it was his signature ?—A. Yes, sir. 

Q. Before lie told Mr. Smith to take his seat, had lie ruled against him ?—A. I think 
he had. 

Q. Many times—more than once ?—A. Well, as I said, I had been there but a few min¬ 
utes when the thing occurred. My impression is that there had been some ruling. I 
will state that I think on that occasion, and as occurred on several other occasions, 
and in general, the judge didn’t allow argument, as a general thing, upon objections 
to questions. A question would be propounded to a witness, and the other side would 
say, “I object;” and the judge would say, “Objection sustained,” or, “ Objection over¬ 
ruled,” immediately; and I think in that way there had been some overruling—some 
kind of overruling of motions about the testimony. 

Q. Have you given us all about that case that you can?—A. About the habeas corpus 
case? Yes, sir. 

Q. Is there anything else in relation to the general question that you wish to state ?— 
A. No, sir; I do not think I can specify anything particularly. 

By Mr. Smith : 

Q. Were you concerned as counsel in the case of 239 bales of cotton claimed by the 
Planters’ factory through Nunn & Thompson, agents ?—A. Yes, sir. 


467 


Q. 1 louse go on and gi ve a narrative of what occurred in that case, from the first to 
tlio last,—A. My connection with the case commenced a day or two after the difficulty 
r i' vc ‘,T Busteed and Mr. Smith. I think it was the following day after that 

difficulty that an order was made by the judge disbarring Mr. Smith—refusing to allow 
bun to appear m court again, for contempt of court. 

Judge Busteed. It was the same day. 

Witness. Well, I do not think it was done at the instant, as well as I remember. 
At any rate Mr. Smith was disbarred—was prevented from attending the court; and 
he told me he had a case of some importance there, and that his client and lie em¬ 
ployed me to attend to it. I wish to state that fact in order to show that there were 
associate counsel, and that I was only really assistant counsel, acting in court. I was 
furnished with the papers and drew up the pleadings in the case, and attended to the 
case alter that in court during the time it was pending. I filed a claim to the cotton on 
behalf of the Planters’ factory. A few days afterward I filed exceptions and answer 
to the libel, taking several exceptions on the ground of jurisdiction, and insisted also 
that the cotton was not liable to condemnation. Some time after the exceptions had 
been filed, 1 filed a petition to bond the cotton, on behalf of the Planters’factory, rep¬ 
resented by Mr. Nunn and Mr. Thompson, who were in Mobile. A day or two after 
that a motion was made by tlie district attorney, on behalf of the United States, to 
sell the cotton, and at the same time I made a re-motion to hear and dismiss the case 
on the exceptions I had filed of want of jurisdiction, or to bond the cotton. There had 
been some delay, probably two or three weeks, 1 do not exactly remember how long, 
in reference to tlie cotton, because there was a controversy pending in regard to it in 
Washington, before the departments; and before these motions came up the Secretary 
of the treasury had issued an order to the collector here to release the cotton, and 
under that order the collector had given a release for the cotton. I think it was Mr. 
Torneny. I may not call him exactly by name. However, an order had been obtained 
from W ashington, from the Secretary of the Treasury, releasing the cotton, and when 
the motions came up, besides arguing to some extent exceptions to the jurisdiction, I 
called the attent ion of the court to the fact that there had been an order issued by the 
Secretary of the Treasury for the release of the cotton. The judge interrupted mo in 
that statement, and went on then to make some pretty harsh comments on the Secre¬ 
tary of the Treasury. I think lie said that Mr. McCulloch would do better to attend 
to his greenbacks, and not be undertaking to interfere with cases that were in his 
court. Something of that kind : I cannot give all the language that he used. At the 
same time we had received a dispatch—Mr. Smith’s firm had—from the Attorney Gen¬ 
eral, stating that he had directed the district attorney not to proceed in the matter. 
I brought that.also to the notice of the court, as a reason why the cotton Should not be 
ordered to be sold. It appeared to me to constitute a very good reason to be addressed 
to the court. I mention why it is I brought these matters to the attention of the 
court. The judge then said, I think, that he had known something of Attorney Gene¬ 
rals that had not known too much of law; or some remark of that kind. He then 
overruled my application to be allowed to bond the cotton, and ordered it to be sold. 
I think it was iu the spring term of 1866—it was in April, as well as I remember—that 
I was employed in the case, and it was in May when this order of sale was made. 
One of the grounds upon which I had excepted to the jurisdiction of the court was, 
that proceedings had been instituted in the middle district, at Montgomery, against 
identically the same cotton, and that a bond had been given there before the proceed¬ 
ings had been commenced here, and that, therefore, this court had no jurisdiction of 
the case. That, however, had been overruled, and the cotton ordered to be sold here. 
At the December term, Mr. James Q. Smith, who was district attorney for the middle 
district, came down here and made a motion in the court to transfer the proceedings 
that had been commenced in this court, to the middle district. I was informed by Mr. 
Herndon, Mr. Smith’s partner- 


By Mr. Bingham : 

Q. Was it after or before the sale that the motion was made to transfer the case?— 
A. It was after the sale. 

Witness. That an order had been made transferring it, I think the day after I heard 
of it. I came into the court and learned that the judge would entertain a motion to 
set aside the order transferring the case. I made a motion then to set aside the order, 
and stated the reason why I made the motion. The judge refused to set aside the 
order ; I think the motion was not made in writing. The order to transfer the case to 
Montgomery was made, I think, when I was not present at all. I had no knowledge 
of it at all, and whether it was made on application in writing, or not, I do not know. 
In making my motion, I stated that if the case was originally commenced here pro¬ 
perly, that it ought not to be transferred to Montgomery, and if it was not commenced 
properly here—because the case was pending in Montgomery, and he had overruled 
my proposition—that the court had no jurisdiction, and therefore, that the proper 
order should be to dismiss the case here, and not to transfer it to Montgomery. The 
judge overruled the motion. 



468 


By Mr. Eldridge : 

Q. Did lie assign reasons for liis judgment in overruling the motion ?—A. My im¬ 
pression is that he stated, whether those reasons might be sufficient or not to transfer 
the case, they ivere not sufficient to set aside the order that had been made transfer¬ 
ring it. 

By Mr. Bingham : 

Q. I understand you to say that you have stated your impressions, but have no 
distinct recollection of the reasons the judge stated?—A. Yes, sir; I think that was 
the substance of it. At a subsequent term of the court, a motion was made to set 
aside the order transferring the case to Montgomery, and that motion was granted. I 
think that was at the next spring term, 1867, I think. 

By Mr. Smith : 

Q. You made that motion ?—A. My impression is that it was made by Mr. Andrews, 
representing the United States. The order to transfer it to Montgomery was made on 
the motion of James Q. Smith, and the order to set it aside was, I think, made on mo¬ 
tion of Mr. Andrews. 

Q. What were the grounds of the exceptive allegations ?—A. The grounds appear of 
record. 

Q. State whether or not those grounds were brought to the attention of Judge Bus- 
teed, and if so, in what manner?—A. They were brought to his attention at the time of 
the motion to make the sale. I had in court the record of the proceedings in Mont¬ 
gomery, and was prepared to show that the two hundred and thirty-nine bales were a 
pa reel of the same six hundred bales mentioned in the record. 

Q. State whether you were allowed to read the record ?—A. No, sir ; I was not. 

Q. Why were you not allowed to read that record ?—A. The judge decided, as 
well as I remember, that inasmuch as he was not in Montgomery at the time that 
these proceedings were commenced and the bond taken, that no valid bond could be 
taken ; that the marshal was not authorized to take a bond for the forthcoming of the 
property in Montgomery; that the law required that the bond must be approved by the 
judge. I think that was the statement of the judge. I can only state that is my recol¬ 
lection ; that he knew, of his own knowledge, that he was not in Montgomery at the 
time the bond was taken by the marshal, and it could not therefore be a legal bond. 

I stated just now that the motion to set aside the order transferring the case to Mont¬ 
gomery was made, to the best of my recollection, at the spring term of 1867. It is pos¬ 
sible 1 may be mistaken about that; it may have been at the fall term; it was made 
subsequently. Nothing more occurs to me at present in relation to that case. 

Q. State whether, at the time the judge overruled your motion, you brought to his 
attention or not that the case ought to be dismissed here instead of being transferred 
to Montgomery ?—A. Yes, sir; I did bring it to his attention, as will appear by the 
record. I had taken the ground all along that as the case was pending in Montgomery, 
it was improperly brought here; and that was brought to his attention as a reason why 
it ought not to be brought to Montgomery. 

Q. Do you know Jacob Wilson?—A. Yes, sir. 

Q. What relation, if any, did he bear to Judge Busteed?—A. The first time that I 
ever saw Jacob Wilson, I did not know him at that time, was when I first called to 
see Judge Busteed, at his house, in Mobile. He came to the door, and appeared to me 
to be acting as house servant, menial servant, of Judge Busteed. I took him to lie 

such. 

Q. If you have had other opportunities to observe his relations, state them ?—A. I 
have seen him with the judge here in Mobile and at Montgomery, and from the orders 
that would be given by the judge, and his conduct to him, he appeared to me to be his 
servant. 

Q. What act of a menial character did you see him perform for the judge ?—A. Well, 
the judge spoke to him as a man would speak and order a petted and menial servant! 
as “Jake, do this,” ‘‘Jake, do that, “bring in some ice-water, ” and sometimes with 
an accompaniment to it. He seemed to be speaking in the same way that a gentleman 
would speak to a servant, giving orders; not by any means the manner of a person to 
an associate, even an humble associate. 

Q. Were you in court when John Healy moved to set aside a nonsuit?—A. Mv im¬ 
pression is that I was not in court when the motion was made to set aside a nonsuit. 

I think however, I was in court when the nonsuit was ordered. 

Q. Is there any such a thing in this State as a compulsory nonsuit?—A. Not accord¬ 
ing to our practice. 

Q. Is there any such a thing as fining a man or witness for taking a nonsuit ?—A. I 
never heard of any. The party taking a nonsuit is liable to be taxed for the court 
costs; but I never heard of any fine. 

Q. How long have you been practicing your profession in Alabama ?—A. About thirty 
years—a little over. 


469 


Q. Have you anything more to say touching the conduct of Judge Busteed: if so, 
a\ hut is it A. Being in the court every term that has been held here, and two or three 
rp, lnKS , in -Montgomery, I saw a good deal, and I have given one or two specimens. 
L heie ha\ o been some other occasions, but I can not recall them now. I think it right 
lime to state that Judge Busteed’s course towards me, personally, has always been 
courteous and polite. I have never, except on the one occasion I have referred to. had 
any occasion to object to it, and that was a difference ot opinion—when he stopped my 
aigument about that motion in respect to the proceedings at Montgomery. But to 
me, personally, his deportment has been generally courteous. 

By Judge Busteed : 

Q* ^mi stated in your direct examination that the manner ol the judge was per¬ 
emptory and dictatorial to witnesses and members ot the bar. State the witnesses to 
whom his manner was peremptory and dictatorial ; state their names.—A. I remember 
t he case; I do not remember the name of the witness who was examined by Mr. Smith. 
I am unable to give it to you. 

Q. Can you give the name of a single witness towards whom the judge’s manner was 
dictatorial and peremptory?—A. I heard a considerable part of the examination of 
Judge- 

Q. Can you give the name of a single witness to whom the judge was peremptory 
and dictatorial ?—A. I think you had Mr. Joshua S. Secor. 

Q. Ho you give him ?—A. Yes, sir. 

Q- Any other name of a witness?—A. Well, I do not remember any other name now. 
I do not remember the name of the witness who was under examination by Mr. Smith, 
at the time of that habeas corpus case. 

Q. Do you remember any other witness except Secor, to whom Judge Busteed was 
peremptory and dictatorial in his manner ?—A. I cannot, at this moment. 

Q- This case ot habeas corpus arose out of the seizure by Towne, by whom the habeas 
corpus was gotten, of certain cotton up in one of the counties of this State, didn’t it?— 
A. So I understood. 

Q. And the State court, so-called, indicted Towne for highway robbery, didn’t it ?— 
A. That was my understanding. I do not know how the fact was. 

Q. He was a treasury agent, wasn’t lie—that was your understanding of the case ?— 
A. I do not know whether lie was or not. 

Q. Was that the popular understanding of the fact at the time you were able to 
gather the information you have given in your direct examination ? 

(Question not allowed ; modified as follows:) 

Q. Was he reputed to be a treasury agent?—A. Well, I am not able to say that; I 
heard that he claimed to be a treasury agent. 

Q. This indictment found against Towne was found before the reconstruction of the 
State of Alabama, under the laws of Congress, wasn’t it?—A. Yes; I think it was. 

Q. And while the State was subject to military domination ?—A. I think so. It 
was in the spring of 1868, at least, that this occurrence took place. 

Q. You have spoken of letters written to the Treasury Department in relation to the 
two hundred and thirty-nine bales of cotton, while proceedings were pending in Judge 
Busteed’s court. Who wrote those letters, and to what particular person in the Treas¬ 
ury Department were they addressed?—A. When I was employed in the case I was in¬ 
formed that there had been proceedings in the Treasury Department in relation to this 
cotton. Who the letters were written to, or by whom, I have no knowledge at all, 
except from what I heard through Mr. Smith. 

Q. From your associate counsel?—A. Yes, sir. 

Q. Isn’t it a fact that these letters contained intimations to the Treasury Department 
that the court and the district attorney were endeavoring to use the process and power 
of the court to oppress the planter’s factory, in respect to this cotton?—A. Ido not 
know. 1 never saw one of the letters, and never knew anything about the contents of 
them. 

Q. Were you ever told about the contents of those letters by Mr. Smith?—A. As 1 
stated, I was employed after Mr. Smith was disbarred, but Mr. Smith and his firm con¬ 
tinued to attend to the whole matter, as far as the Treasury Department was concerned, 
and continued to give attention too to the case that was in court. I prepared the 
pleadings, but had nothing to do with the correspondence with the Treasury or the At¬ 
torney General; never wrote a letter to him, or ever saw a letter that was written to 
him. 

Q. When James Q. Smith made the motion to transfer this case of the two hundred 
and thirty-nine bales of cotton to the middle district, did the district attorney of the 
southern district consent to the transfer, do you know?—A. I do not know whether 
he did or not. 

Q. You were in court ?—A. I was not in court when he made the motion. I was in 
the court when the motion was made to set aside the order transferring it. 

Q. What was the title of that case on the December, 1886, docket, and in whose 



470 


hand-writing was it written ?—A. The United States vs. Two Hundred and Thirty-nine 
Bales of Cotton. It was in judge Cuthbert’s hand-writing, who was then deputy clerk, 
or acting clerk of the district court for the^southern district. , 

Q. Whose names appear on the docket as attorneys, respectively, for the parties ? 

(The witness was allowed to read from the admiralty docket.) 

A. The name of Mr. Martin appears here, at the December term, as counsel for the 
United States, and my name appears as counsel for the two hundred and thirty-nine 
bales of cotton and the claimants thereof. 

Q. Has the judge of the district court anything whatsoever to do with the making 
up of that docket?—A. I do not understand that he has. It is the clerk’s business to 
make up the docket. 

Judge Busteed. I propose to read from this docket the entries in this case and put 
it in right here, if you will allow me. 

(The consent of the committee was given, and the judge read as follows :) 

“ December 22, 1866. Called. No appearance by the district attorney for the southern 
district. The district attorney of the middle district moves that the case be remitted 
to the middle district, &c. Granted.” 

“December 26, 1866. The district attorney for the southern district of Alabama con¬ 
sents to the motion of the district attorney for the middle district.” 

‘ May 21, 1867. On motion of Mr. Andrews the above order is vacated.” 

Q. This docket is kept in the clerk’s office and always open to the inspection of the 
attorneys, isn’t it ?—A. I think so. 

Q. Have you any doubt of it?—A. None at all; I never had any. 

Q. So that any entry made upon it by the judge’s order, in respect to any case upon 
it, can be seen at any time by the attorneys?—A. Yes, sir. 

Q. Do you deny that it was competent for the court to impose costs for taking anon- 
suit, as was done in that case?—A. According to my understanding of the law and 
practice in Alabama it was not competent for the court to add anything to the tax costs 
of the case. They would be imposed, as a matter of course, upon the party taking the 
non-suit. I have never known any other costs imposed upon taking a non-suit. 

Q. In these cases in which you say the judge would give the witness the question, 
and require him not to answer it until he himself had delivered it to the witness, were 
they not cases in which there was no jury, and in which the judge acted in the double 
capacity of judge and juror?—A. Iam not able to answer that question. I have 
known it done sometimes. It was not always the case. I do not mean to say that 
when you were sitting in admiralty, or without a jury, that it was always the case that 
you objected to the counsel asking the witness questions directly, but it was on several 
occasions. 

Q. But on these several occasions were they not cases in which I bad to try the case 
before me ?—A. I have known of jury cases, as in the case of Tonne, in which a man’s 
conscience had to be informed. I am unable to answer the question. I cannot say I 
have ever heard you in a jury case; I cannot undertake to say that, whether you did 
or not. 

By Mr. Eldridge : 

Q. You don’t remember of a case, where there was a jury, of his doing so ?—A. No, 
sir; I am not able to state. 

By Judge Busteed : 

Q. How often did Jacob Wilson open the door of Judge Busteed’s house for you, on 
Government street?—A. Only once. 

Q. Did you ever see Jacob Wilson perform any menial services for Judge Busteed, 
and if so, what was it ?—A. I have seen him bring in ice, and I think I have seen him 
bring in some liquor occasionally, also. 

Q. You think you have?—A. Yes, sir. 

Q. Where did he bring it from? Do you know ?—A. Well, I am not sure ; I cannot 
say. 

Q. How often will you say that you saw him do that ?—A. Well, I do not know that 
I can say that—some two or three times. 

Q. Will you swear of your recollection that you ever saw him do that ?—A. Yes, sir; 
I have seen him do that sometimes. 

Q. Bring me liquor?—A. Well, I think so. I know about the ice. 

Q. I am not talking about ice, 1 am talking precisely about the other. Will you un¬ 
dertake to say that you ever sa w Jacob Wilson bring anything into my room except 
water and ice ?—A. 1 do not know that I ever saw him bring it into the room ; but I 
think I have seen him bring it from the table or closet in the room. 

Q. From a table in the room to another part of the room?—A. Yes, sir. 

Q. Wilson was an attendant, under the marshal, upon court, wasn’t he?—A. Yes, 
sir; he was understood /to be deputy marshal, or acted as-. He was deputy mar¬ 

shal ; I understood distinctly that he was deputy marshal. I was told so. 



471 


Q. Did lie bring water to the judge in that capacity ?—A. Well, I think so—in the 
court-room. I have scon him bring water there. 

Q- ^ 011 were lormerly district judge of the United States for the district of Ala¬ 
bama?—A. Yes, sir. 

Q- And you were upon the bench of the district court when the rebellion broke out?— 
A. \es, sir; I was upon the bench. I wish to correct that answer; I was on the bench 
the day that Alabama seceded. 

Q. And didn’t you come down from the bench upon which you had just been judi¬ 
cially acting, into the middle of the court-room, and hurrah for the act of secession?— 

A. No. 

Q- What did you do in relation to that particular thing—in relation to that point?— 
A. O 11 the lltli day of January, 1861, 1 was holding the United States district court, 
here in this building. The business of the court required that 1 should hold the court 
in the afternoon, and, indeed, until after dark, and I think 1 held it after dark in 
the clerk’s office, to sign minutes, or something of that sort; and I directed the court 
to be adjourned in the ordinary mode. I never hurrahed for secession, or anything of 
the kind. I will state that in the evening—that evening—telegraphic news had been 
received from Montgomery that the State had seceded. When 1 got through with the 
business, I ordered the court to be adjourned in the usual manner. The marshal of the 
court went to the window, and there was a considerable crowd in the street between 
this building and the Battle House, and he announced, in a very loud voice, that the 
district court was adjourned sine die, or forever, or something like that. I did not hear 
the announcement. There was a statement made in the papers next day ; there was a 
great deal of excitement and anxiety on that matter—that the judge had adjourned 
the court sine die, or forever, or something of the sort. It was not true, and I contra¬ 
dicted it in the paper of the following day. 

Q. You accepted from the rebel States government the same position that you had 
previously held under the United States government, and acted in this city and State 
as the district judge for the rebel government, didn’t you ?—A. I did, for the govern¬ 
ment of the Confederate States. 

Q. Did you, at any time-while so acting, either in private conversation or publicly, 
suggest or declare that the United States should be indicted as for a nuisance?—A. 
No, sir. 

Q. Did you take the judicial oath of office when you were appointed United States 
judge?—A. Yes, sir. 

Q. When you were appointed judge of the rebel States, did you take the oath of 
office to support that government?—A. Well, you call them rebel States ; I call them 
the Confederate States. I took an oath of office when 1 was appointed judge of the 
district court of the Confederate States for the district of Alabama. 

By Mr. Smith : 

Q. Is the 239 bales of cotton case still held in this court for trial ?—A. I presume so. 
The last order I knew of being made in the case was to reinstate it—set aside the order 
to transfer it to Montgomery. 

Q. Do you also know whether it is held in Montgomery for trial ?—A. No, sir ; ex¬ 
cept from information. 

Q. Were you present in court, or called on to assent or dissent from the order rescind¬ 
ing the order of transfer to Montgomery?—A. I am under the impression I was present, 
though I am not positive about that. 

Q. Were you called on to state whether you objected or dissented from it ?—A. I can¬ 
not be positive about that; Mr. Herndon was in court; I do not remember whether I 
was or not. 


Percy Walker sworn and examined. 


Mobile, Alabama, June 8, 1869. 


By Mr. Smith : 

Question. What is your profession, and where do you exercise it ?—Answer. I am 

practicing law in the city of Mobile. 

Q. How long have you been practicing law in the city of Mobile ?—A. About twenty- 


live years, I guess. . . 

Q. State anything you may know of the judicial conduct of Judge Busteed.—A. llie 
question is a difficult one to answer, but I will state as accurately as I can nftei this 
lapse of time, and having no watchful eye upon Judge Busteed, and paying no particu¬ 
lar attention to the progress of litigation in his court, fherefoie, of couiso, my testi¬ 
mony cannot approach any degree of positiveness, except perhaps here and there. As 
far as Judge Busteed’s judicial treatment towards myself is concerned, 1 do not know 
that 1 have 5 any very great cause of complaint. ' 1 will state in that connection, that 
for some time after iie came here his deportment to myself, both oft ami on the bench, 
was characterized by a great deal of politeness, perhaps even going further than that, 


472 


manifesting, as I thought, a disposition to be on very friendly relations with me. As 
for his general bearing upon the bench I cannot commend him. On the contrary, I 
think, taking his whole course as a judge here, it was well calculated to produce dis¬ 
content with the bar, distrust with litigants in court. 

Mr. Bingham. State what his conduct was. 

Witness. I must then narrow down my testimony to particular facts as they oc¬ 
curred to me. I state in reply to the question, that it was not, in my judgment, such 
as became the office. There was, as an almost uniform characteristic of Judge Busteed 
on the bench, very great abruptness, frequently manifestations of impatience at the 
bar. 

Mr. Lougiikidge. I object to the witness stating his conclusions. 

Witness. It is impossible for me to cite individual instances. I cannot state the par¬ 
ticular day upon which this or that act was done, or this rudeness shown, or the member 
of the bar to whom it was shown. I kept ho record of those things. 

By Mr. Bingham : 

Q. Can you recollect any particular case in which Judge Busteed said or did any¬ 
thing that was not, in your judgment, according to the duties of his office; and if so, 
wliat was it?—A. I must tax my memory as well as I can do so. In the case of the 
United States vs. Gustavus Horton, I was present at the opening of the trial, aud upon 
the suggestion of the then district attorney to the bench, that he required assistant 
counsel, Judge Busteed requested myself and two or three other members of the bar to 
act as such, all of whom declined. I also declined. I saw very little more of the trial, 
but came in towards the conclusion of it. I had stated to the court that I had formed 
a legal opinion of it. I merely state that as preliminary to what is to follow. I did 
not state my opinion to the court, but I told the district attorney. When I came back 
into the court-room the case seemed to have passed out of the hands of the counsel for 
the defense, Mr. Moulton, and appeared to me to be conducted by the judge. I do not 
remember anything that fell from the bench, and I could only state the conclusions 
formed in my mind; but that I am shut out from stating. Can I state what struck me 
as to the position of Mr. Moulton, the defendant’s counsel ? 

Mr. Bingham. State simply what the judge said and did. 

Witness. I do not recollect what lie said or did. I kept no note of it. 

By Mr. Smith : 

Q. State wliat was the condition and appearance of Moulton, the defendant’s counsel ? 

(Objected to by Judge Busteed. Objection sustained, Mr. Eldridge dissenting.) 

Q. Wliat effect was the conduct of Judge Busteed on that occasion calculated to 
produce upon the defendant’s counsel ? 

(Objected to by Judge Busteed. Objection sustained.) 

Q. State facts showing the manner in which Judge Busteed was conducting the case 
after 1 e appeared to have taken control of it ?—A. I can ouly say that I cannot recol¬ 
lect anything the judge said. I could only state, as has been ruled out two or three 
times by the committee, the impression his manner made upon me. 

By Mr. Eldridge : 

Q. What was it that indicated that he was acting in the place of the defendant’s 
counsel?—A. His language and his manner indicated to me a determination to take 
the case entirely in his own hands. I think after I came in that the defendant’s counsel 
took no part, though he stood by the accused in the case. 

Q. Who questioned the witnesses?—A. Judge Busteed, while I was there. 

Q. On both sides, or on one side ?—A. I don’t remember whether it was on both sides 
or not. It might have been on both sides. I remember during the trial, when I was 
there, that the person who was the cause of the prosecution, a negro named Johnson, 
who was sitting on one of the benches of the court-room, was called up by Judge 
Busteed; but I do not remember now whether he was interrogated by the judge or by 
the counsel. The judge did put some question to him, but what it was I don’t recollect. 
I heard Judge Busteed’s charge, but as that, is a matter of record it is needless for me 
to state wliat it was. 

By Mr. Smith : 

Q. What was the judge’s manner in delivering that? 

(Objected to by Judge Busteed. Objection overruled.) 

A. Judge Busteed’s charge in that case—or rather, his manner—was characterized 
by more than his usual emphasis. He gave his charge slowly and with exceeding- 
directness and force of manner. Now if 1 go on and state what animus ruled the judge 
it would be shut out. I say therefore that the judge’s manner was, as it was always, 
emphatic, having unusual emphasis on that occasion. 

Q- ktate any particular tacts in your own practice that would appropriately fall 
within the general question.—A. As I speak entirely from memory I cannot be ac¬ 
curate as to dates or other facts, perhaps. At the April term, I think, of 1866, a, libel 


473 


ot information was filed by Mr. Worrall, the then district attorney, against some 
twenty-four bales of cotton, the libel being founded, as well as I recollect, upon an act 
of the federal Congress, of August, 1861—the confiscation act. In the libel the name of 
no informer was given. There were a series of allegations in the libel on file in the 
court, alleging that it was the property of the United States; that it was abandoned 
property ; that it had been captured; that it was abandoned and surrendered to the 
United States government by virtue of the surrender of the confederate forces, under 
General Richard Taylor, and some other allegations. I was retained by the business 
agents here of Mr. Harris A. Johnston, of Columbus, Mississippi, representing himself 
as the owner of the cotton. This cotton was seized by the marshal by virtue of that 
process and that libel. The libel was filed near the last of April, and two or three 
days afterward I filed a claim in the usual manner, for the owner, under oath. A few 
days after that, I filed also for him exceptions, and an answer to the libel, alleging its 
insufficiency, and assigning various reasons, alleging among others, I recollect, that 
at the time of the filing of the libel, and the issuance of process under it, the insurrec¬ 
tion had ceased, that peace had been restored, and not until that cessation of hostili¬ 
ties was the libel filed ; in a word, setting up his ownership. A few days after that 1 
also filed a petition proposing to enter into the usual stipulations for the cotton, with 
approved surety. That motion was denied by the court. About the same time I made 
a motion, on the motion docket, for an order that a commission issue to take the testi¬ 
mony of certain witnesses residing in Mississippi, which order was granted by Judge 
Busteed. For some reasons, I do not remember now whether it was the absence of the 
district attorney or some other cause, they were not issued at all. If I remember 
aright, Mr. Andrews, then acting, perhaps, for Mr. Worrall, during some period, gave 
consent that the testimony should be taken. They were left here to be crossed, but 
they were never crossed. The commission went out, and the testimony was all taken 
and returned to court. Before that was done, however, after the refusal to allow the 
claimant to enter a stipulation and get possession of his property, a motion was made by 
the district attorney for the sale of the property. I appeared in court and resisted the 
motion, as counsel for the claimant. 1 think the ground of the motion, if I remember 
right, was an affidavit, perhaps made by the marshal, Mr. Hardy. The objections 1 
made to the motion were overruled by the judge, and an order of sale made. The 
sale took place. The matter stood so for some time ; the commissions were all returned, 
and no hearing was had. I do not know whether the minutes do or do not disclose 
these facts. But there was nothing like definitive action taken in the premises until, 
I think, February, 1887, when the case was dismissed for want of prosecution. The tes¬ 
timony was here, and 1 endeavored to get a hearing. I do not pretend to say that 
Judge Busteed threw any obstacles in the way of my having a hearing in that case, but 
in February, I think, 1887, the case was dismissed for want of prosecution; and, I think, 
in the same order dismissing it for lack of prosecution was one to the proper officers 
of the court to pay over to the claimant the proceeds of the sale. I thereupon called upon 
Mr. Worrall, I think it was ; and Mr. Worrall tendered me a check for a certain amount, 
which was considerably less than the whole proceeds, which I, at that time, declined to 
receive. I then entered a motion upon the motion-docket for an order against John 


Hardy, the marshal, to pay over to the claimant between eight and nine hundred dol¬ 
lars which he had retained in satisfaction of certain expenses, costs, and charges. 1 
ed the ground that it was a prosecution by the United States and seizure of cot- 
hat under Judge Busteed’s decision and opinion in the Dexter case, which was 
opinion delivered in November, 1865, which I presume is on record, peace had long 
fore been restored, and that the United States had no claim whatever to this cotton, 


assume* 
ton; tin 
an < 

before- 7 

and, it having been dismissed and stricken from the docket, that the withholding ol 
the money was anything but rightful. Therefore I made this motion to have this entire 
amount of money paid over to me, or rather to my client, the complainant. I do not 
remember whether the marshal was examined or not, but I had with me a copy of his 
account of sale, with a number of vouchers, all of which, I presume, are in the clerk’s 
office. The amount embraced sundry items. There were considerable sums allowed 
to one Jacob Wilson for commissions as auctioneer; Jacob Wilson being, as I presume, 
the deputy marshal, or some attache, at any rate. I suppose his name has been before 
the committee before. And there were charges of insurance and various other items, 
amounting to eight hundred or nine hundred dollars, all of which I contended were 
improper as against my client, inasmuch as the whole case for the prosecution had 
failed. While hearing the motion, as well as I recollect, Judge Busteed asked me if I 
objected to any particular item. My reply was that I objected to the entire account 
as being unjust, and not constituting any claim in law against the claimant. He then 
ruled it out, as I understood him to say—at least the reason assigned was that the ob¬ 
jection was in soliclo. I did not design to strike out any particular item, but L was 
'alleoing the whole case; I believed the whole was an unjust charge. As 1 alv- 
understood, the practice always was here, and the law and the ruling of the c 
authorized, to be, in a case of seizure of property, to enter into stipulations, which ri 
were denied by the then district judge. 1 conceive that to lie an improper act m 


As I always 
of the court 
gilts 
his 


474 


judicial capacity. I do not know, but my impression is that I gave notice of an appeal, 
and 1 think it was in that case, or some other, that Judge Busteed remarked, playfully, 
“ 1 don’t see that you gained much from appealing from the district judge to the same 
person as the circuit judge.” 1 received afterward Mr. Worrell's check, signed and 
countersigned, for the proceeds of the sale, less this costs account, the sum of eight hun¬ 
dred or nine hundred dollars. That matter T recollect with some degree of distinct¬ 
ness, because it struck me at the time as- 

By Mr. Smith : 

Q. What was the number of bales of cotton?—A. Twenty-four bales of cotton. 

Q. What was the proceeds paid to you ? What did they amount to ?—A. The marshal 
made his return in the usual manner, stating the whole amount of this sale, and his 
return accompanied this hill of costs, and also the receipts of various parties to whom 
he claimed to have paid these sums of money. And Mr. Worrall, in making up liis 
accounts, deducted the amount of this bill of costs from the sum total, and the case 
was finally disposed of by my receiving from him the check for the proceeds, less the 
amount of this bill. 

Q. Uo you know of any other matter?—A. There is another matter that I could 
mention, but I could not state the whole of it, for the simple reason that a large por- 
tion of it came through a client while I was associate counsel, which would be mere 
hearsay. It is in reference to some indictments against Mr. J. M. Tomeny, who came 
out here after the war as revenue assessor, I think for this district, and who was in¬ 
dicted by the grand jury for embezzlement. There were perhaps two or three indict¬ 
ments returned against him. I was not retained at first as counsel, but came in after¬ 
wards as associate counsel with, I believe, Mr. Smith and Herndon. When I came in 
the case the counsel for the defendant, Tomeny, were denied by the court, by the 
judge, access to the indictment, and copies refused by the judge. But at the time of 
the arraignment of the prisoner, as well as I recollect, Mr. Herndon and myself both 
being in court, the objection was made as to the arraignment because we wished to 
avail ourselves of the right to plead abatement or make a motion to quash. The party 
was arraigned, however, and the plea of “not guilty” entered—either Mr. Herndon or 
myself, as well as I recollect, saying at the time, he reversed the right to make the 
motion or interpose the plea. 

By Mr. Eldridge : 

Q. Who entered the plea of not guilty ?—A. Tomeny was in court himself, and of course 
had to plead not guilty. The application made by Herndon and myself was declined, 
and he was at once arraigned. My impression is that he entered the plea after his 
counsel had not obtained the delay sufficient to determine whether they would inter¬ 
pose or not. Then I think Mr. Herndon—I do not remember which of us—asked for a 
copy of the indictment. Judge Busteed’s reply was, “You have already heard the 
indictment read.” I do not remember whether it was before or after that, that Tomeny 
was called upon to enter into a bond. He had already filed a bond for a pretty large 
sum of money; for, if I am not mistaken, there were two indictments against Tomeny. 
Thereupon I saw Judge Busteed upon a Saturday, and had some conversation with him 
about it. Mr. Walsh and Mr. Wells had made themselves liable in court for Tomeny, 
in which they had to be qualified, as I was informed. Judge Busteed insisted that these 
parties should be qualified again, which they were not disposed to do, having sworn, I 
believe, that they were worth $100,000 over and above their liabilities. 

Judge Busteed. I object to that portion of the testimony. 

Witness. On that. Saturday evening—I do not remember the date at all, but Judge 
Busteed had agreed to be here on Saturday evening—I sent word for these two gentle¬ 
men, Mr. Walsh and Mr. Wells, to meet me in Mr. Tomeny’s (the collector’s) room, 
below, and after an interview with Judge Busteed, I left under the impression that 
there would be no bond given. A few moments after coming down stairs, a messenger 
came for Mr. Tomeny and myself to go up stairs. We went up, and after a brief con¬ 
versation, Judge Busteed concluded to take the bond, and while he was writing the 
bond, I presume—writing at his desk—some general conversation ensued. After the 
matter was determined upon, I remarked to the judge, “I suppose I can get a copy 
now of the indictment?” He said, “No, sir.” And I have never seen the indictment. 
That struck me as an unusual thing, that the counsel for the accused person should be 
denied the privilege of seeing the accusation against him after lie was under bond. 

By Mr. Smith : 

Q. You stated when the plea of “ not guilty ” was entered you claimed the right to 
plead abatement or make a motion to quash ?—A. Yes, sir. 

Q. Did the judge grant you that t —A. I do not know that he made any reply to it. 
The case went on, and sometime afterwards, on one occasion, I called for a dismissal of 
the case, because of certain authenticated papers which I had from the Treasury De¬ 
partment, showing a settlement by that department with Mr. Tomeny, and putting 



475 


is well as I 
I failed 
ney, or how 


the government in debt with Tomeny for about fifteen thousand dollars, as 
recollect. Nothing was done with that, however, until some time afterward, 
m getting anything done, whether by the interposition of the district attoriu 
cannot recollect ; I merely recollect the fact that I had the papers. By the next term 
ot the court, Mr. Rufus Andrews, who had been here before, and had i 
with the case at all up to the time of which I am now speaking, came hr 
an interview with him. He had in the mean time been retained as conns 


papers 

no connection 
e back, and I had 

. ---— counsel by Tomeny, 

and lie had in his possession papers, tlie/ac similes of those I had a good while before. 
We went into court—I do not recollect precisely, now, when; either the docket or the 
entries will show—the minutes I presume. The case was called up, and the matter 
Avas dismissed; perhaps one indictment was quashed on the motion of the district 
attorney. Mr. Andrews had no connection with the case until this late period—just 
prior to its final disposition. My impression is, that Mr. Andrews and myself were 
both in court, and Avhen the facts Avere stated leave Avas granted to the district attor¬ 
ney to dismiss the case. 

Q- I* 1 your previous motion had you stated the facts of the case ?—A. I had stated 
that I had the settlement of Mr. Tomeny, showing a credit to him against the govern¬ 
ment. 1 was astonished too, I confess, at the refusal to give copies of the indictment. 

Q. Is there any other matter, in answer to the general question, that you Avisli to 
state ? A. Well, 1 do not knoAV that I can recollect any other; if I took time to think, 
I might have another matter; but 1 do not remember any iioav. I do not recollect that 
I was ever in the court Aidien either of the difficulties that liaA r e been spoken of, be¬ 
tween the judge and members of the bar, occurred. 

Q. Who of your firm generally attended the court ? 

(Objected to by Judge Busteed. Objection sustained.) 


By Judge Busteed : 

Q. Upon the trial ot the indictment against Horton, avIio appeared to prosecute the 
indictment ?—A. There Avas the district attorney ; and the judge appointed Mr. George 
W. Steward. 

Q. 1 think I understood you to say that the district attorney had requested in open 
court that the judge should name counsel to assist him in the case ?—A. I think so ; I 
may say that was so. 

Q. What is the professional character and ability of George W. Steward ?—A. I 
should say, in a Avord, most excellent. He is considered the senior member of our bar. 

Q. Is he a man that Avould be likely to use his office—his appointment—as public 
prosecutor in a case of that kind, to oppress the individual indicted?—A. I do not 
think he is. He is a man of strong prejudices, but I certainly should not entertain or 
venture to express such an opinion as that of him. 

Q. Do you not believe that lie Avould scorn indignantly any proposition that he should 
so use his office, whether it came from the bench or anybody else?—A. Yes, sir ; I do. 

Q. Was he present Avhen you state Judge Busteed Avas questioning the witnesses ?— 
A. My impression is that he Avas. 

Q. Did you observe any objection on his part to the course of the judge ?—A. I do 
not recollect; I was there but a very short time, as I stated. 

Q. Did you hear any objection on his part toward the course of the judge?—A. I 
did not. 

Q. Did you hear Mr. Moulton, aaJio was counsel for the defendant, object to any 
course of the judge in examining the Avitnesses, as you stated ?—A. I do not recollect. 

Q. In relation to this indictment against Tomeny, did you apply to the district at¬ 
torney for a copy of the indictment ?—A. I do not remember. 

Q. Did you apply to the clerk for a copy of the indictment? —A. I am satisfied that 
I did, and I Avas told that there was an order there not to have it. 

Q. A verbal or a written order, Avere you told ?—A. I did not .see any order; I think 
it Avas by Judge Cutlibert, who was then in the office. 

Q. It Avas not by Mr. Worrall that you Avere told?—A. Not that I remember; Ido 
not think I had any conversation with Mr. Worrall about it. Judge Cutlibert was 
almost always in the office doing the business. 

Q. Do you mean to say that you applied to Judge Busteed for a copy of that indict¬ 
ment at any other time than at the arraignment of Tomeny; if so, Avhen was it?—A. 
On the night in question, when you took the bond ; on Saturday night. I have forgot¬ 
ten the date; it was after the arraignment. It was, I think, in reference to another 
prosecution. 

Q. Was the application to the judge for a copy of the indictment, before or after the 
application to Cutlibert?—A. It must have been made after. 

Q. Was it, or might it have been, before? What do you swear as to that?—A. It 
must have been after. 

Q. Do you recollect that as matter of fact?—A. Oh, it must have been so, because 
the clerk is the custodian of it. 

Q. You say that when Tomeny Avas arraigned, you objected to his pleading to the 


f 

t 


476 


indictment, because of your riglit to file a plea in abatement or to move to quash ?—A. 
Yes, sir ; if it were thought proper. 

Q. Wasn’t the judge’s answer that, upon the arraignment, lie mus\t plead to the in¬ 
dictment; that that was the proper course ?—A. Yes; I think you are right in that. 

Q. And it was alter the indictment had been read to Tomeny, upon arraignment, 
that you renewed the application for a copy of the indictment?—A. No, sir; there was 
no renewal. After the refusal and the plea of not guilty was entered, then the request 
was made, either by Mr. Herndon or myself, I do not remember which. 

Q. And it was then that Judge Busteed said that you had heard it read?—A. Yes, 
sir ; I think we could not judge of the indictment, was Mr. Herndon’s reply. 

Q. Who was the district attorney for the United States when the indictments against 
Tomeny were found; was it not Mr. Worrall?—A. My impression is, Mr. Worrall was; 
I do not recollect. 

Q. Who was district attorney of the United States for the southern district of Ala¬ 
bama when the indictments were dismissed ; was it not L. V. B. Martin ?—A. I think 
so. I think they were dismissed before Mr. Grandin came in. 

Q. And after Worrall went out?—A. Yes, sir; I think they were not dismissed while 
Worrall was in office, and I am not sure whether by Martin or Grandin ; at all events 
it was not by Worrall. 

Q. Had any motion ever been made by the district attorney to enter a nolle prosequi 
upon these indictments, before the motion was made upon which they were nolle prose- 
quieclf —A. I could not answer that question. 

Q. Do you know of any such motion having been made before?—A. I cannot recall 
any such motion, though it may have been made. 

Q. Would you not be as likely to recollect this fact as any other you have sworn 
to ?—A. I cannot answer that; I do not recollect. There was a letter read in court 
from the attorney general to the district attorney, directing him not to proceed against 
Tomeny; but I do not know whether this was at the term at which the proceedings 
were dismissed or not. My impression is that it was not at that term. 

Q. Had there ever been a motion made before this to nolle prosequi this indictment ?— 
A. I do not recollect; but at the time this letter was read, the district attorney may 
have accompanied this motion with it, though I cannot pretend to speak with any 
certainty about it. 

Q. Did you ever know a judge of a criminal court to keep possession of indictments 
himself, so that he might be enabled, upon the demand of the attorney, to give copies 
of it ?—A. I never did. I wish to add that, according to my knowledge of the practice 
and the law in this State, that when an indictment is returned into court by a grand 
inquest, it is read simply by its title; sometimes not read at that time, but is handed 
to the judge, who runs his eye over the indictments, passes them over to the clerk, and 
then they are entered upon the minutes by the clerk, in the regular order in which 
they are brought in by the grand jury. In cases of misdemeanor, where parties have 
already entered into bonds for appearance, no writ of arrest issues. In a case where a 
party is not under arrest, of course a writ issues. Under the law, now in force many 
years, the clerk is not allowed to exhibit to any one an indictment against a party who 
is not either under recognizance or confined in prison. In all other cases the record is, 
of course, a public one, and not only the accused, but any person, has a right to see the 
papers on file, and to obtain copies when called for. And that is the reason why I 
complain of the action in this case. I do not pretend to say, however, that Judge Bus¬ 
teed kept those indictments in his own hands, by any means. 

Q. Up to December, 1867, your relations with Judge Busteed were those of friend¬ 
liness, were they not?—A. Yes, sir; there had been no interruption of the intercourse 
that usually prevails between gentlemen. 

Q. Up to that time ?—A. Yes, sir. 

Q. Up to the day he was shot by Martin ?—A. Yes; there had been no interruption 
of intercourse then or since, that I am aware of. 

Q. You are one of the counsel for Martin, who shot Judge Busteed ?—A. Yes, sir ; I 
am retained as his associate counsel. 

Q. Prior to I860, did you take an oath to support the Constitution of the United 
States, and more than once?—A. I certainly did take it. 

Q. And more than once?—A. Yes, .sir; I took it in Washington two or three times, I 
think, as a member of Congress, and perhaps at the Supreme Court bar, and as a mem¬ 
ber of the legislat ure of this State. 

Q. And once as an attorney-at-law?—A. And once as district attorney, I believe. 

Q. Subsequently to 1860, did you engage in armed rebellion against the United 
States?—A. Yes, sir; I may say that I engaged in the war. I did not go into the field, 
on account of my poor health. 

Q. Have you a pardon from the President of the United States for your participation 
in treason against it?—A. Yes, sir; in 1835, I think, I received it. 

Q. Is not one of the conditions of t hat pardon that you shall thereafter bear true alle¬ 
giance to the government of the United States ?—A. I presume it is there. 


Q. Did you not subsequently to accepting that pardon, and in the fall of 1868, at 
Mobile, publicly declare that General U. S. Grant was a human donkey; and that 
Schuyler Colfax, the speaker of the House of Representatives, was a man without 
character f—A. 1 will answer that in this wise: During the presidential canvass of 1868, 
after the nomination of Seymour and Blair, a ratification meeting was called in this 
city, to be held at the theater. I had no agency in the call. I went in some time after 
the meeting had commenced, and was sitting far back in the parquette, when, after some 
gentleman had closed a speech, there were many calls made for me, and, having no 
special reason for backing out of it, I walked around to the stage and addressed the 
meeting, occupying probably not more than ten minutes. I was in a very bad condi¬ 
tion of health at the time, and speaking from the moment, not having heard the pre¬ 
vious addresses, I cannot pretend to recollect the language that I used. But I remem¬ 
ber that within a day or two afterward the newspapers gave an account of the meet¬ 
ing, and did put into my mouth the language used by Judge Busteed. But while I do 
not recollect that I did use such language, I certainly shall not undertake to say that 
I did not; and, if it is proper for me to say it, I think that a good many—Mr. Greeley 
and others—have said pretty much the same thing since. General Grant was not then 
the President. This was a speech made in high party times; and I will say, in connec¬ 
tion with that, that this alleged language of mine seemed to have been the cause of the 
most outrageous and indecent assault upon me afterward, which I saw in the papers. 

Q. Was Schuyler Colfax then Speaker of the House of Representatives of the United 
States of America ?—A. That I presume is a matter of history. 

By Mr. Smith : 

Q. You commenced stating what Herndon’s reply was when the judge told you you 
had heard the indictment read, but was stopped by Judge Busteed, and did not answer 
the question. I now ask you to state wliat that reply was?—A. I think he said we 
could not judge of the plea. The intimation was that we could not come to any par¬ 
ticular and definite understanding of the case after hearing the indictment. Mr. Hern¬ 
don would recollect that better than I do, because he was the leading counsel in the 
case. 

Q. Was George W. Steward a man competent to conduct the prosecution without the 
help of Judge Busteed?—A. Unquestionably. 


G. H. Cleveland sworn and examined. 
Bv Mr. Smith : 


Mobile, Ala., June 8, 1869. 


Question. Do you generally go by the name of Huggins Cleveland ?—Answer. Yes, 
sir; but I sign my name G. H. Cleveland. 

Q. What business did you follow in 1865-’66-’67 ?—A. The pickery business. 

Q. In this city ?—A. Yes, sir. 

Q. Explain what the pickery business is.—A. It is an establishment where old and 
damaged cottons are put in order. 

Q. Do you remember what was done with some fifty-odd bales of cotton, in reference 
to which Jones Withers had a difficulty ?—A. No, sir. 

Q. Do you recollect anything in reference to two hundred and thirty-nine bales of 
cotton?—A. I cannot say that I do. If you explain to me whicli_ones they were—the 
marks—I might know about it. 

Q. They were in possession of John Hardy, the marshal, and claimed by Nunn & 
Thompson, of the planters’ factory?—A. No, sir; I do not know of any cotton that 
Nunn & Thompson had anything to do with, or the marshal. 

Q Don’t you know something about cotton that the marshal had to do with ?—A. I 
remember a lot of cotton that 1 put in order; but whether it was for the marshal or 
not I do not know; I do not remember the number of bales or the marks. I think it 
was in 1865—about four years ago. Since that time I have had four different partners, 
and all our old books and accounts are so scattered that I know hardly anything about it, 

Q Do you recollect anything in reference to any cotton in connection with which 
you were called before Judge Busteed?—A. Yes, sir; I recollect that; but the marks of 
the cotton and the number of the bales I do not remember. 

Q. What was done with that cotton in respect to which you were called before .Judge 
Busteed?—A. I do not know what cotton you allude to. 

Q. Do you remember of any two hundred odd bales of cotton that were materially 
altered or changed in your pickery?—A. No, sir; I do not. 

Q Do you remember any cotton that was materially altered or changed in your 
pickery ?—A. Yes, sir; I have had a good deal of cotton altered and changed—the letters 

and numbers of bales. e r . Un „,i 

Q. Do you remember any you changed or altered on the instructions of John Hardy 

or Jake Wilson?—A. Yes, sir. - , , ,, 

Q. State in reference to that.—A. I do not remember the number of bales or the 


478 


marks of the cotton. 1 do not remember ever seeing the order or having had any com¬ 
munication with Hardy or Wilson. The parties who had this cotton put in order 
were there all the time and attended to it themselves. The pickery was merely rented 
or leased to them. The party superintending it was named Coleman; he was clerk of 
.J. C. Palmer, and he attended to the whole concern—had the cotton hauled to the pick¬ 
ery and gave instructions. 

By Mr. Lougiiridge: 

Q. l)o you know anything about Hardy having anything to do with it, with the 
exception of what you heard from others?—A. No, sir. 

By Mr. Smith : 

Q. Was that the cotton in reference to which you were called before .1 udge Busteed ?— 
A. I really do not know whether it was or not: I do not remember the marks of the 
cotton, or the number of bales. 

Q. Did Judge Busteed have your deposition taken?—A. Yes, sir. 

Q. Who took it?—A. I could not tell you that. I am not acquainted with the parties 
who wrote it down. 

Q. Was or not that the time that Mr. Jones Withers was complaining before the judge 
that his cotton had been substituted?—A. I do not know. I never heard of any com¬ 
plaint. 

Q. What was done with the cotton which Coleman, as clerk of J. C. Palmer, had in 
the pickery ? 

(Objected to by Judge Busteed. Objection sustained; Mr. Eldridge dissenting from 
the ruling.) 

[Mr. Smith asked permission, and was allowed to put the following in evidence:] 

United States of America, Southern District of Alabama, ss: 

Know all men by these presents that we, Laurence Worrall, Joseph C. Palmer, and 
Rufus F. Andrews, acknowledge ourselves justly indebted to the said United States of 
America in the sum of two thousand (2,000) dollars, for the prompt payment of which 
we bind ourselves, our heirs, executors, administrators, and assigns forever, as witness 
our hands and seals, at the city of Mobile, this the 18th day of November, 1865. 

The condition of the above obligation is such that, whereas the said Laurence Wor¬ 
rall has been appointed clerk of the United States district and circuit courts for 
southern district of Alabama by the judge thereof: now, therefore, if the said Lau¬ 
rence Worrall well and faithfully discharges and performs all the duties of said clerk¬ 
ship, (during the time he shall hold the same,) then and in that event this obligation 
shall be void and of no effect; otherwise to be of full force and effect. Given under 
our hands and seals, at the place and on the day aforesaid. 

Approved. 

LAURENCE WORRALL. [seal.] 

J. C. PALMER. [seal.] 

RUFUS F. ANDREWS. [seal.] 

I, Nathaniel W. Trimble, clerk of the United States district and circuit courts for 
the fifth judicial circuit and southern district of Alabama, do hereby certify the fore¬ 
going to be a true and correct copy of bond of Laurence Worrall as clerk, as on file in 
my office. 

Witness my hand and the seal of said court, this the 2d day of February, A. D. 1869. 

[seal.] N. W. TRIMBLE, Clerk, fc. 

I approve of the within bond, and of the sufficiency of the sureties therein named. 

RICHARD BUSTEED, 

Judge of the United States District Court for the State of Alabama. 

Mobile, November 18, 1865. 

Filed November 20, 1865. 

LAURENCE WORRALL, Clerk. 


United States of America, Southern District of Alabama, ss: 

Know all men by these presents that we, Laurence Worrall, Joseph C. Palmer, and 
Rufus F. Andrews, acknowledge ourselves justly indebted to the said United States of 
America in the sum of two thousand dollars, for the prompt payment of which we 
bind ourselves, our heirs, executors, administrators, and assigns forever, as 'witness 
our hands and seals, at the city of Mobile, this the 25tli day of December, in the year 
1865. ‘ J 

The condition of the above obligation is such that, whereas the said Laurence Wor¬ 
rall has been appointed clerk of the United States circuit court for the southern dis- 


479 


nerfim/tbif: r ’* 1 i lle 1 re f >i ; e : it til© said shall well and truthfully discharge and 
t !A U 1 t ' i r 1 r erks 1 ll, F 1 ’ the time he shall hold the same,) then and 

foiv i m, l wL* Ins obligation shall be void and of no effect; otherwise to he of full 
toice and effect. Given under our hands and seals, on the day and at the place aforo- 


In the presence of 

E. C. V. Blake. 


LAURENCE WORRALL. [seal.] 
JOSEPH C. PALMER. [seal.] 
RUEUS F. ANDREWS. [seal.] 


I, N. Irunble, clerk of the circuit court of the United States for the fifth ju¬ 
dicial circuit and southern district of Alabama, do hereby certify the foregoing to be 
office 6 aWd COn ' eCt C<>ry of 1,011(1 of Laurence Worrall, esq., as clerk, as on file°in my 

\\ itness my hand and the seal of said court, this the 2d day of February, A D 1869 
[SEAL -] N. W. TRIMBLE, Clerk, <fc. ‘ * 

Bond given by clerk of the United States circuit court for the southern district of 
Alabama. 

RICHARD BUSTEED, 

U. >S. District Judge. 

Filed December 25, 1865. 

LAURENCE WORRALL, Clerk. 


By Mr. Bingham : 

Q. State whether you have any books or memoranda whatever showing any account 
of the two hundred and thirty-nine bales of cotton claimed by the planters’ factory, 
through Munn & Thompson, or the fifty or fifty-nine bales of cotton claimed by one 
Williamson.—A. No, sir ; I do not think I have. 

Q. Will you make inquiry and see if you have, and report to this committee whether 
you have?—A. Yes, sir. 

Q. Have you any books or memorandum showing an account of any cotton whatever 
taken to your pickery, from the custody of either Jacob Wilson or John Hardy, the 
marshal, at any time?—A. I think not; I do not think I have any books for 1865-6; I 
have had three partners since 1865, and one of them took the books and papers off 
L.mself, and what other books and papers were left were thrown about and destroyed; 
I do not think I could show any books or any records of any sort. 

By Mr. Lougiiridge : 

Q. Do you know, from your own personal knowledge, of any such cotton having been 
taken to your pickery from the custody of those parties ?—A. No, sir ; I do not. 

By Mr. Smith : 

Q. What cotton was it you were called upon to testify before Judge Busteed respect¬ 
ing, and what was the subject-matter of that inquiry?—A. I could not tell you what 
cotton it- was; if you will allow me I will explain it to you as near as I can; I re¬ 
ceived at my pickery four hundred and eighty odd bales of cotton; I think it was 
bought at public auction by J. C. Palmer; I had that cotton put in order for Mr. Pal¬ 
mer ; there was another lot of cotton, after I had find shed that cotton, which I also 
put in order, or the parties themselves had it put in order at my pickery, at the same 
time; but what the cotton was—the marks and number—I don’t remember. 

Q. What was the matter you were called on to testify about,before Judge Busteed?— 
A. I don’t remember. It was mixed up with the four hundred odd bales that I put 
in order for Palmer. I remember giving testimony, but what it was I do not remember 
now. 

Q. Don’t you know what was the subject of inquiry ?—A. Well, there was a great 
many questions asked me about the cotton, and I answered them correctly; but wliat 
they were, I do not recollect now. 

Q. Don’t you recollect what was the subject-matter of the inquiry ?—A. I do not 
know that I can say that I do. I think that Hardy was being tried for something of 
the sort, and that I was a witness against him. It was a good while ago, and I don’t 
remember. My statement at that time, I gave correctly. 

Q. Was that about the time Jones Withers was pursuing his cotton?—A. I don’t 
remember that at all. I don’t remember Jones Withers’s case at all. 

Q. Do you remember telling Jones Withers, about that time, that while you were in 
here, being examined, John Hardy came in, and that Judge Busteed saluted him, 
“Good morning, Mr. Cotton-thief”? A. No, sir; I do not. 

Q. Do you remember stating, in a coffee-saloon here, last winter, that this cotton 


480 


had been changed by order of Jake Wilson, and that Judge Bustoed had caused you to 
he brought up before him, and that his lieutenant had taken your testimony, and that 
they didn’t read it over to you ?—A. No, sir. 

Q. Were not material changes in the quality and quantity of something over three 
hundred bales of cotton made in your pickery in the spring of 18(33 ; and it so, what 
changes were made, and by whose orders were they made ? 

(Question not allowed—Mr. Eldridge dissenting from the ruling.) 

Q. What became of the deposition you gave before Judge Busteed ! 

Judge Busteed. I object to the form of the question. 

Q. State whether or not you gave a deposition before Judge Busteed about cotton, 
and what became of the deposition.—A. 1 do not know wliat became ot the deposition. 

Q. State, as near as you can, the date when you gave that deposition.—A. I could not. 

By Mr. Eldridge : 

Q. Where did you leave the deposition, after you gave it ?—A. Eight here, sir, in 
this room. (The judge’s room.) 

Q. Who with ?—A. I could not tell that. I left it in the hands of the party who took 
it down. 

Q. Who took it down t —A. I could not tell you. I was not introduced to the gentle¬ 
man, at all. 

Q. Who swore you f —A. I could not tell correctly, as to that. 

By Mr. Smith : 

Q. Do you know Lawrence Worrall ?—A. No, sir. 

Q. Do you know him when you see him ?—A. No, sir. 

Q. Who was present when that deposition was taken f—A. Judge Busteed was pres¬ 
ent, and I think an orderly that he had at his door, and I believe once or twice during 
the examination, Wilson—I understood his name was—came in. 

Q. And you cannot remember any fact in connection with that deposition ?—A. No, sir, 
I cannot. 

By Mr. Eldridge : 

Q. Where is this man Palmer ?—A. I haven’t seen him since that time. I don’t know. 

Q. Where is Column ?—A. 1 could not tell that, either. I have seen him since 
that time. 

By Mr. Smith : 

Q. Where is Rice ? —A. I could not tell that. 

Q. What relation did Rice bear to you at that time?—He was in iny employ, at the 
pickery. 

Q. What was his first name'?—A. Charles. 

Q. When did you last see him ?—A. To-day—this morning. 

Q. Where could he be found, in this town?—A. 1 have no idea. He is not in employ 
now ; he is not doing anything. 

By Judge Busteed : 

Q. Was Joseph C. Palmer a large operator in cotton before Judge Busteed came to 
Mobile, in December, 1865 ?—A. Yes, sir ; I think lie was. 

By Mr. Eldridge : 

Q. Did he reside here ?—A. For a short while, I think he did. My first, acquaintance 
with him was in this lot of cotton, that he bought at auction, and that he gave me to 
put in order for him, and the cotton that you spoke of afterwards, which was all done at 
the same time, and which I do not remember the difference between. 

Q. Have you ever seen him since ?—A. No, sir. I think lie left, very shortly after 
that. 

Mr. Smith. 1 offer in evidence the record (No. 38) from the district court of the 
southern district of Alabama, entitled the United States vs. 239 bales of cotton, claimed 
by the Planters’ factory of Autauga. 

Judge Busteed. I object to the introduction of all this record that has relation to 
the charges of the marshal and the copy of the receipts taken by him, or alleged to be 
taken by him, and to everything else in it, except the pleadings in this case, including 
the libel of information, the answer, the exceptive allegations, and the rulings of the 
court—to none of which I object. 1 object because there is no evidence that these 
bills—and I assert the fact that they never were presented—were ever presented to 
the judge for his inspection, or the review of the charges asked; and no evidence that, 
upon such asking, a review was denied, or the charges sustained. 

(The record was allowed to be put in evidence by the committee, and is tiled among 
the papers in the case, marked X.) 


481 


By Mr. Smith : 


Q. State whether the cotton, which was in your pickery for repairs, under the charge 
ot Geoige 1 . Coleman, was in part or in whole changed? If so, to what extent was it 
changed? 

(Question overruled by the committee, Mr. Eldridge dissenting from the ruling.) 

Ml. Lldkidge. I dissent tor the reason that it appears in the record, which has been 
ottered in evidence, that there is a charge made for repairing this cotton, or repacking 
it, of some $2,000 by Coleman. Coleman is referred to in the testimony of Jake Wif- 
son as having received an order from him upon which he might act in reference to this 
cotton; and the witness having stated that he repacked some of the Coleman cotton, I 
think he should be allowed to answer, so that he may show whether or not it was these 
239 bales of cotton. 

Q. How much of the cotton was taken out? What, if any, cotton was substituted? 
And how did the substituted cotton correspond with that originally in the bales ? 

(Same ruling by the committee as in regard to the previous question; Mr. Eldridge 
dissenting for the same reasons.) 

Mr. Smith read the following, which he ottered in evidence, (page 8(5, section 9, of 
the Municipal Code of Mobile:) 


11 Hi all cases where lines, penalties, or forfeitures are imposed, they shall be for, and 
shall extend and apply to, each and every act of omission, and for each and every day’s 
continuance of such act or omission, when it is of a continuing character; and, in ad¬ 
dition thereto, the mayor is authorized, when in his opinion the welfare of the city re¬ 
quires it, to remove, or cause to be removed, to any other place within or out of the 
city, any and all persons, vessels, goods, property, obstructions, erections, and nui¬ 
sances that are forbidden by any of these ordinances to be or remain in the city, or 
any part thereof, at the expense of the offender.” 

Also the following, (section 293, page 172 :) 

“That all vagrants, idle, dangerous, and suspicious or disorderly persons, or persons 
of evil life or ill fame; all persons that have no visible means of support, or are likely 
to become chargeable to the city as paupers; all persons who may be found begging; 
all persons drunk in and about the streets; all persons loitering in or about bar-rooms 
or tippling-houses; all persons who have no reasonable course of business in the city ; 
all who have no fixed place of residence; all who are grossly indecent in language, per¬ 
son, or behavior publicly in the streets ; all public prostitutes, or such as lead a noto¬ 
rious, lewd, or lascivious course of life ; all persons occupying houses in the city who 
shall keep the same in a riotous or disorderly manner, or permit such conduct on his 
premises, shall be subject to such penalty as the mayor may impose, not exceeding fifty 
dollars: Provided , That he may release himself from such penalty by giving bond in 
such sum as the mayor may prescribe, for six calendar months, conditioned to be of 
good behavior for such time, and to indemnify the city against any charge for his sup¬ 
port, or he may, at the discretion of the mayor, bo permitted to leave the city; and 
all dangerous and suspicious characters may be sent therefrom without their consent.” 

Judge Busteed offered in evidence the whole book, viz: “The Municipal Code of 
Mobile,” which was received and put on file among the records of the committee. 


Mobile, Alabama, June 9, 1869. 

Robert Smith sworn and examined. 

By Mr. Smith : 

Question. What is your business, and where do you reside?—Answer. I am a mer 
chant, and reside in this city. 

Q. State whether you or your firm made any purchase of real estate in Selma on a 
sale made by John Hardy as marshal ?—A. Yes, sir ; I purchased some property in my 
individual name but my partner, Mr. Walsh, was also interested in it. 

Q. State how you settled it—to whom you made the payment ?—A. This property 
was advertised to be sold for cash, and before the sale I asked Mr. Hardy if he would 
as soon have the money in Mobile as in Selma. He said it was just as well. I told 
him if I made a purchase of the property I would give him a check on my partner, 
Mr. Walsh, who was interested with me in the purchase, and he would arrange the 
matter in Mobile. He said that would be acceptable, and when the property was sold 
I became the purchaser, through a friend ; but it was for me, he had no interest in it 
whatever. I gave him a memorandum check—I think it was on Mobile—not on my 
house—my house had no interest in it whatever. Mr. Walsh and myself bought it 
jointly. Mr. Ammi Smith, the other partner of our house, had no interest in it. 

Q. The point I wish to call your attention directly to, is about your giving notes, 
and how you paid for it ?—A. I came down to Mobile after the purchase, and gave to 
Mr. Hardy our note—Robert W. Smith and Charles Walsh—for $16,370, for the entire 

32 B 


482 


purchase. “ On demand we jointly and severally promise to pay John Hardy, marshal, 
for value received. 

“ ROBERT W. SMITH. 

“ CHARLES WALSH. ” 

We paid $5,000 in cash, and paid the other when the note was surrendered to us. 

By Mr. Eldridge : 

Q. What was the date of the purchase?—A. The date of the note is March 23, 1867. 
On the 12th of June, 1867, we paid John Hardy $5,000, which payment was then in¬ 
dorsed on the note. After that was done the paper was indorsed, “Pay to James Q. 
Smith or hearer; John Hardy, U. S. Marshal;” and was presented by James Q. Smith 
for payment on the 20th of June, when we paid him $5,000 in cash, and he took for the 
balance our two acceptances for $3,185 each. That makes the total amount. He then 
gave us our notes. These acceptances were promptly paid at maturity, which I think 
was on the 18tli of November, 1867. One of the acceptances was made in favor of James 
Q. Smith, and the other in favor of E. E. McCroskey. 

By Judge Busteed : 

Q. How long have you lived in Mobile ?—A. Since 1835—about 35 years. 

Q. Have you been in the habit of attending the district and circuit courts of the 
United States in Mobile since they have been presided over by Judge Busteed ?—A. Only 
as a grand juror. 

Q. Have you had any opportunity of noticing the public judicial demeanor of Judge 
Busteed upon the bench, and if so, what was it ?—A. I have had but little opportunity; 
but while I was there I have generally discovered Judge Busteed seemed to be very 
prompt in his action about business, but I think rather overbearing in manner. 

Q. To whom was I overbearing ?—A. It may have been manner more than anything— 
in fact I cannot state. 

Q. What term were you grand juror?—A. I do not recollect. 

Q. Wasn’t it the December, 1867, term ?—A. It may have been. 

Q. Were you ever a grand juror more than once ?—A. I may have been. 

Q. Was I overbearing in manner towards yourself?—A. Not at all; on the contrary 
quite the reverse, and also to the grand jury itself. 

Q. Any overbearing manner towards any party in the court that you know of, and 
if so, to whom?—A. 1 have thought, judge, to the bar, it seemed to me that it was 
rather abrupt at times. It may have been manner—it is just the idea that struck me. 

Q. What members of the bar do you refer to ?—A. I do not know any particular 
members. I only recollect the impression. 

Q. Were you one of the grand jurors who found a bill of indictment against Hor¬ 
ton ?—A. I think I was. 

Q. Have you been in communication with Henry C. Semple upon the subject of these 
impeachment proceedings against Judge Busteed ?—A. Nothing except that Mr. Semple 
wrote to me about my testimony in this case alone. I have never directly or indirectly, 
except in connection with this McCroskey case. He subpoenaed me to go to Washing¬ 
ton, and I told him I knew nothing except what I was willing to swear to, and I pre¬ 
pared a letter stating these facts. That letter is now before me. It is the only corre¬ 
spondence I have ever had with him upon this subject. 

Mobile, Alabama, June 9, 1869. 

Owen McMahon sworn and examined. 

By Mr. Smith : 

Question. What is your business?—Answer. I am bookkeeper in the Bank of Mobile. 

Q. Please state the account of the district court for the southern district of Alabama 
with the bank of Mobile.—A. I have a copy of it here. 

Q. Wliat is the balance to the credit of the United States district court for the 
southern district of Alabama in the Bank of Mobile now ?—A. $340,086 02. 

Q. Is that account correct ?—A. It is, to the best of my knowledge and belief. 

Q. What alterations, if any, have been made in that account since you sent it on to 
Washington City by Judge McKinstry?—A. There has been one check paid of $3,075, * 
on the 12th of May, 1869. That is the only alteration. 

Q. If you have the checks that were drawn on the bank, produce them.—A. These 
are the checks (showing them) since the book was last settled on the 22d of February, 
1868. The checks previous to that time were given up upon the settlement of the 
books. The balance brought forward then on the 22d of February, 1868, was $11,515 67. 

Q. What becaine of the checks up to that date—the 22dof February, 1868 ?—A. They 
were given up with the pass-book. 

Q. Given up to whom?—A. To the clerk of the court, Mr. Worrall, I presume. That 
is the usual custom to give up the checks when the books are settled. The checks are 


483 


returned with the pass-book. The pass-book is left there for settlement, and taken 
away when it is settled. 

Q. These (exhibiting them) are the checks that have been drawn, are they?—A. Yes, 
sir; they are the checks charged to that account. 

By Judge Busteed: 

Q. How many of them have you got?—A. Six. 

By Mr. Smith : 

Q. Please read the checks with the dates, amounts, and to whom payable, and state, 
as you go, how they are signed.—A. Montgomery, 14th March, 1868, for ninety-nine 
dollars, signed Richard Busteed, United States district judge, &c., and countersigned 
N. W. Trimble, clerk ; payable to Willis 0. Bannon or bearer. In the case of the United 
States vs. The steamer Virginia, No. 1. 


Mobile, May 16, 1868. 

Pay to Tlmrber, Rutland & Co., or bearer, $118 80. 

[Signed:] RICHARD BUSTEED, 

United States District Judge. 

[Countersigned:] 

N. W. Trimble, Cleric. 

[Indorsed:] 

Tiiurber, Rutland & Co., vs. Steamboat Reindeer. 


Mobile, May 16, 1868. 

Bank of Mobile pay to Alexander McKinstrv, attorney, or bearer, $1,829 85. 

RICHARD BUSTEED, 

United States District Judge. 

[ Countersigned:] 

N. W. Trimble, Cleric. 

[Indorsed :] 

Wm. Hernie et als. vs. Steamboat Reindeer. 


Mobile, May 23, 1868. 

Bank of Mobile pay to John M. Hollingsworth, or order, from the moneys proceed¬ 
ing from the cargo of the bark Talia, $6,923 20. 
fSio-ued:] ‘ RICHARD BUSTEED, 

° United States District Judge for Alabama. 

[Countersigned:] 

N. W. Trimble, Cleric United States District Court. 

[Indorsed:] 

John M. Hollingsworth. 


Bank of Mobile pay to Jacob 
Motte, $938 in currency. 
[Signed:] 


Mobile, May 29, 1868. 

Stan wood, or order, attorney in fact for Charles A. 

RICHARD BUSTEED, 

United States District Judge. 


[Countersigned:] 

E. C. V. Blake, 

Cleric United States District Court, Middle District of Alabama. 

[Written on face :] Charles A. Motte vs. Robert S. Williams et al. 

[Indorsed:] Jacob Stan wood, attorney in fact for C. A. Motte; Jacob Stanwood; J. S. 
Green, cashier; Josiali Morris & Co. 


Bank of Mobile pay to N. W. Trimble, 
$3,075. 

[Signed:] 


Mobile, May 12, 1869. 

clerk United States district court, or order, 

N. W. TRIMBLE, 

Cleric United States District Court. 


[Countersigned:] 

Richard Busteed, Judge #c. . 

[Indorsed:] In admiralty, James Coyle and others vs. Ship Albert Gallatin, 

vs. Bark Talia. N> w TRIMBLE, 

Cleric United States District Court. 


Mile 


484 


By Mr. Smith : 

Q. Wliat is the amount standing to the credit of the court for the middle district ?— 
A. $13,910 75. 

Q. Is that correct ?—A. Yes, sir. 

Q. Up to what time have you the checks?—A. I have got all the checks here belong¬ 
ing to that account. 

Q. You have all the checks?—A. Yes, sir; they are as follows: 

[Check No. 2.] Mobile, May 29, 1868. 

Bank of Mobile pay to Bice, Semple and Goldwaite, or bearer, $200 in gold coin. 

[Signed:] RICHAKD BUSTEED, 

United States District Judge. 

[Countersigned:] 

E. C. V. Blake, 

Clerk United States District Court, Middle District of Alabama. 

[On face :] Charles A. Motte vs. Robert S. Williams ct al. 

[Indorsed:] Pay to the order of R. W. Smith; Rice, Semple and Goldthwaite; 
Robert W. Smith. 

[Check No. 1.] Mobile, May 29, 1868. 

Bank of Mobile pay to Elmore, Keyes and Morrissett, or bearer, $600, in gold coin. 

[Signed:] ‘ ' ‘ RICHARD BUSTEED, 

United States District Judge. 

[Countersigned:] 

E. C. V. Blake, 

Clerk United District Court, Middle District of Alabama. 

[On face:] Charles A. Motte vs. Robert S. Williams et al. 

[Indorsed:] Elmore, Keyes aud Morrisette; J. S. Green, cashier; Josiali Morris 
& Co. 

[No number.] Montgomery, Ala., 9 January, 1869. Cashier Bank of Mobile, Alabama 
pay to the order of R. W. Healy, U. S. M., $2,500 and charge to the account of the U. 
S. district court for the middle district of Alabama. [Signed :] E. C. V. Blake, U. S. 
district court, middle district of Alabama. [Countersigned:] Richard Busteed, U. S. 
district judge. [On face :] On acc. fees in bankruptcy. [Indorsed:] R. W. Healy, U. S. 
marshal. Pay J. S. Green, cashier, or order; Josiali Morris & Co. 

[Check No. 4.] Mobile, May 29, 1868. Bank of Mobile pay to Jacob Stamvood, or 
order, attorney in fact for Chas. A. Motte, $1,400 iu gold. [Signed:] Richard Busteed, U. 
S. district judge. [Countersigned:] E. C. Y. Blake, clerk IT. S. district court, middle 
district of Alabama. [On face:] Charles A. Motte vs. Robert S. Williams et al. [In¬ 
dorsed:] Jacob Stan wood, attorney in fact for C. A. Motte; Jacob Stan wood ; J. S. 
Green, cashier: Josiali Morris & Co. 

By Mr. Smith : 

Q. Were the accounts which were sent by Judge McKinstry, from the Bank of Mobile, 
to the congressional committee at Washington City, correct or incorrect?—A. They 
were correct, sir, I think, to the best of my knowledge and belief. 

By Mr. Eldridge : 

Q. Did you make them out ?—A. I kept the book, but the young man in the bank 
copied them off, but I examined them afterwards to see if they were copied correctly, 
and found they were copied correctly. 

By Mr. Smith : 

Q. Has the account of Richard Busteed, as sent by Judge McKinstry, been changed 
since that time, in the Bank of Mobile ?—A. No, sir ; it has not been changed. Nothing 
has been done since that, one way or the other. 

By Mr. Eldridge : 

Q. Do you refer to the personal account of Judge Busteed ?—A. Yes, sir. 

Q. In your last answer?—A. Yes, sir ; his account is squared off or balanced. 

By Mr. Smith: 

Q. Were the checks drawn upon that account, that appears by it, kept by the bank 
or returned to Judge Busteed when it was balanced ?—A. They are here. 

Q. Has the account with the bank kept by the southern district court of Alabama, 
(the district court or the United States for the southern district of Alabama) been 
changed since it was sent on to Washington, except as you have already testified ?—A. 
It has been changed by the payment of one check. There has been one check paid. 

Q. And is embraced in the checks you have given here?—A. Yes, sir. 


485 


Q* Has tlic account ot tlie United States district court for tlie middle district of Ala¬ 
bama been changed since it was sent to Washington ?—A. It lias been changed by a 
$2,500 check, paid on the 15th ot March. But I do not recollect the date that these 
things went on Iroin here. The last check is charged up here on the 15th of March, 
$2,500. YY hether it was before or since March, I do not recollect, when the papers went 
on to Washington. 

Mr. Smith. They were sent on on the 15tli of March, 1869. 

Witness. Well, then, yes. 

By Mr. Eldridge : 

Q. Is that the only change that has been made in the account since the statement 
was sent to Washington?—A. Yes, sir; all the previous transactions were in 1868. 

Q. What check was that?—A. The check of the marshal for $2,500. 

By Mr. Smith : 

Q. Has the bank an account in the name of and with N. W. Trimble ?—A. Yes, sir. 

Q. With Trimble, clerk?—A. Yes, sir. 

Q. Has it an account with Laurence Worrall?—A. Yes, sir. 

Q. Has it any account with the bankrupt court ?—A. Yes, sir. 

Q Have you those accounts, and the checks belonging to them, with you?—A. No, 
sir. 

Q. Will you please make them out and produce them ? 

[The chairman directed the witness to bring in the copies called for.] 

By Mr. Bingham : 

Q. State whether you have with you a statement from the books of the Bank of Mo¬ 
bile of the account as it now stands upon the books of the bank, of Richard Busteed.— 
A. Yes, sir. 

Q. Please exhibit it, and file it in your testimony.—A. It is as follows: 

Richard Busteed in account with Bank of Mobile. 


Dk. 

1868. 

Febr’y 10—To check. $100 00 

11— “ 400 00 

March 21— “ 250 00 

April f24— “ 526 25 

May 25— “ . 2,957 50 


Cli. 

1868. 

January 14—Bv dep’t. $793 75 

March ' 17— “ . 1, 000 00 

April 15— “ . 1,000 00 

17— “ . 1,440 00 


Q. State whether that transcript shows a true statement of the account as it stands 
now on the hooks of the bank?—A. Yes, sir. 

Q. Have you with you a true statement of the account of the United States district 
court for the southern district of Alabama with the Bank ot Mobile ?—A. Y es, sir; this 
is it. 

Q. Hoes the paper now exhibited contain a true statement of the account of the 
United States district court for the southern district of Alabama, with the Bank of 
Mobile ?—A. Yes, sir; the account is as follows : 












486 


United States district court for the southern district of Alabama in account with Bank oj 


Richard Busteed, Judge. 

Mobile. 

Lawrence 

AVORRALL, Clerk. 

1866. 

June 25—To 
26— 

19 checks. 

15 checks. 

balance. 

.$14,583 63 

. 12, 269 36 

. 17, 478 63 

1866. 

June 20— 

23— 

30— 

$40, 437 76 
3,086 06 
807 80 



44,331 62 


44,331 62 

1867. 

Feb’ry 16—To. 

balance. 

. 3, 362 47 

.28,116 16 

1867. 

July 5—Balance. 

Feb’y 6— 

. 17, 478 63 

14, 000 00 



31, 478 63 


31,478 63 

April 19—To 2 checks. 

20— 

22— 

24- 

balance . 

684 17 
12 00 
3, 938 74 
24 00 

.... 48, 525 22 

March 25—Balance. 

April 19— 

20- 
May 21— 

. 28,116 16 

1, 500 00 
5, 000 00 
18, 567 97 



53,184 13 


53,184 13 

May 22—To 
27— 

balance. 

50 00 
13, 550 00 
. 34, 925 22 

May 22—Balance. 

. 48, 525 22 



48, 525 22 


48, 525 22 

June 11—To 
12— 
13- 
Dec. 19— 

2 checks. 

2 checks. 

balance. 

. 5,291 97 

3, 430 67 
15, 700 00 
. 9,900 68 

June —Balance. 

1868. 

Jan’y — 

. 34, 925 22 

1,000 00 



35, 925 22 


35, 925 22 


balance. 

. 11, 515 67 

Jan’y 18 — Balance. 

21— 

Feb'y 21— 

. 9, 900 68 

1, 000 00 
614 99 



11,515 67 


11,515 67 

1868. 

1\T.» ../.b Ol 


oo no 



lMdlbll /wl — 

May 16— 
23— 
June 2— 
1869. 

May 12— 


1, 948 65 
6, 923 20 
938 00 

3. 075 00 

April 15— 

May 14— 

16- 

1,000 00 
250, 048 92 
88, 556 63 

1,948 65 


Q. Have you with you a transcript of tlie account of the United States district court 
for the middle district of Alabama with the Bank of Mobile ?—A. I have. 

Q. State whether it is a true statement of the account as shown on the books of the 
bank ?—A. It is. The account is as follows : 


United States district court for the middle 

Richard Bustekd, Judge. 


district of Alabama in account with Bank of 
Mobile. 

E. C. Y. Blake, Clerk. 


1868. 

tin no 3—Gold. $2,000 00 

12—Gold. 200 00 

1869. 

M’cli 15— 2, 500 00 

Balance. 13, 910 75 


Doll’s. 18, 610 75 


1868. 

M’cli 19—Currency. $15, 471 75 

—Gold....'. 2,200 00 

23— 939 00 

Doll’s. 18, 610 75 

By balance. 13,910 75 


By Mr. Bingham : 

Q. Will you make out and furnish, as soon as may be convenient to the com¬ 
mittee at Washington, a correct statement of the accounts following, to wit: N. AV. 
Trimble in account with the Bank of Mobile ; N. AV. Trimble, clerk, in account with 
the Bank of Mobile; Lawrence AVorrall, in account with the Bank of Mobile ; and also, 
The court of bankruptcy for the southern district in account with the Bank of Mobile, 
together with full copies of tlie checks, indorsements, writings, and figures thereon, le- 
maining in the bank.—A. Yes, sir; I will do so. 

Q. AVill you agree to submit the inspection of the accounts and checks remaining in 
the bank to Air. R. H. Smith?—A. Yes, sir. 


































































487 


By Mr. Smith 
Q* State whether these 


moneys you have testified concerning have heen treated as 


• -I 1 , . v v V J vuiiv/iyiiini ” lid V U UCC11 ILCdltU tin 

special or general deposits.—A. As general deposits, like other deposits of the bank, and 
have been used that way. 


By Mr. Eldridge : 

Q. What do you understand by a special deposit?—A. I understand that it is to be 
kept separate and distinct from the funds of the bank ; not to be used by the bank. 

By Mr. Bingiiam : 

Q. lou mean that they were general deposits to the credit of the respective parties, 
as shown by the account of that bank ?—A. Yes, sir. 

By Mr. Smith: 

Q. E\ erj depositor who deposits money has an account of it kept for him in his own 
name ?—A. Yes, sir. 

. Just in the same way that this was done ?—A. Yes, sir. 

By Judge Busteed : 

Q. When the account with the district court of the United States was opened, did 
you require the judge and the clerk to go to the bank and sign their names in the 
signature book, the same as you would any other depositor?—A. Yes, sir ; the same as 
any other depositor. 


By Mr. Smith : 

Q. The object of that is to enable you to verify the genuineness of the checks?—A. 
Yes, sir. 


By Mr. Eldridge : 

Q. Is there, to your knowledge, any private account with Judge Busteed, whereby 
he has used any of these funds for himself, personally, except as iie has drawn checks 
tor it ?—A. The books do not show anything of that. 

Q* Bo you know of any such thing ?—A. I neither know or believe there is any such 
thing. 

Q. Is there, to your knowledge, any dealing of this bank with Judge Busteed in any 
manner, not shown by the accounts which you have presented?—A. No, sir ; I do not 
know of any; I do not know whether there is or not. 

Q. Who would know whether it is so or not?—A. I presume the president of the 
bank. 

Mr. Smith. I ask transcripts of the following parts of records: In the libel suits 
pending in the United States district court for the southern district of Alabama, 
against the bark Talia, and the ship Albert Gallatin, and against the cargoes of these 
several vessels, and that they may be furnished duly certified by the clerk of the court. 
The records desired are so much as show any and every order of disbursement made 
by the court, and of every disbursement actually made, and every motion on which 
said orders were made in said several cases. 

Judge Busteed. I object to the production of those parts of these records, on the 
demand of the accuser, Robert H. Smith, and state as the grounds of my objection, 
first, that I have judicial knowledge that lie is not proctor for a single salvor in the 
case of the barks Talia or Gallatin ; secondly, that he is not proctor for a single claim¬ 
ant in the case of the Talia or the Gallatin ; that he is a mere interloper so far as these 
eases are concerned, and himself not a party concerned as salvor or claimant; that he 
is not, therefore, entitled to the records which he claims. 

I object, also, because no proctor for a libellant, or for a claimant, has made any 
objection to the proceedings of the court as far as they have gone in those cases. 

I object, further, that the time for such objections has not arisen in either of the 
cases; that they are both pendente life, and that no final decree determining the rights 
of any claimant or any salvor has been made in either of the cases; and that whatever 
decree for payment may have been made is purely interlocutory, and, of necessity, 
bides and is subject to the effect of the final decree in the causes. 

(The committee consented to receive the record—Mr. Lougliridge dissenting from 
the ruling.) 

Mr. Lougiiridge. I am in favor of sustaining the objections to the testimony, be¬ 
cause the cases referred to are pendente life, and the evidence, therefore, immaterial, 
cumbering the record, and adding expense to the government. I see no reason why it 
should be admitted. 

Mr. Bingham. I want it stated, however, that it must be shown upon the certified 
transcript that the two cases are pending and not yet disposed of in the district court 
■of the United States for the southern district of Alabama; and that the clerk shall 


488 


further certify whether there appears of record any objection to any orders made in 
either of the cases thus far by the court, and if so, by whom. 

[A motion was also made by Mr. Smith to have the clerk certify the indictment, 
pleadings, and proceedings had in the case of the United States vs. Gustavus Horton ; 
to which Judge Busteed objected. The committee overruled the objection, and allowed 
the order to be made on the clerk to furnish the same to the committee at Washington, 
duly certified, with his fees for the same taxed thereon.] 


Mobile, Ala., June 9,18G9. 

Moses Waring sworn and examined. 

[Moses Waring, named in the nineteenth of the charges filed by Robert If. Smith 
before the Judiciary Committee in this case, having been subpoenaed upon the sugges¬ 
tion of Mr. Smith, and appearing, Mr. Smith declining to examine him, Mr. Waring asked 
of the committee that he might be examined, as he was personally named in the accu¬ 
sation. Which application being made the committee decided that Mr. Waring may 
be examined by the committee. Mr. Eldridge agreeing that the committee have a 
right in their discretion to examine Mr. Waring, but not assenting to the statement 
in regard to the position of Mr. Smith in relation to the witness.] 

By Mr. Bingham : 

Q. Look at charge No. 19, now shown to you, filed before the Judiciary Committee of 
the House of Representatives, by Robert H. Smith, and state what you may know in 
relation thereto?—A. Well, sir; I desire to make a statement. I do not know any¬ 
thing about it. I employed Mr. Andrews in the management of the case, who par¬ 
tially conducted the case which it speaks of. I employed Mr. Andrews, and paid him. 
He was an attorney practicing here in this court, and I employed him. 

Q. State whether there is any other Moses Waring living in the city of Mobile?—A. 
None other. 

Q. Or has there been recently, or within years past?—A. No, sir. There never has 
been for the forty-seven years that I have been here. 

Q. State what you kuow of the charge referred to in these words: “ That one Moses 
Waring, of the city of Mobile, who mainly managed out of court the case for complain¬ 
ants, and with whom he was a party largely in interest, did, through said Rufus 
Andrews and otherwise, bribe said Busteed to decide said case for complainants ?”—A. 
I don’t know anything about any bribery at all. I employed Mr. Andrews, as I would 
employ any other attorney. I was acting for a large number of people and was chair¬ 
man of a committee whose duty it was to prosecute and protect our case. 

Q. State whether, through Rufus Andrews or otherwise, you did bribe or attempt to 
bribe Judge Busteed in the case referred to ?—A. I never did. Judge Busteed knew 
nothing of my employment of Andrews at all. I employed Andrews, after consulta¬ 
tion with other members of the committee, that 1 respected. 

Q. State whether, directly or indirectly, you attempted by bribery to iniiuence the 
judge to pronounce any decision whatever in the case referred to in this nineteenth 
charge ?—A. I did not. I employed Mr. Andrews as attorney, because I believed it to 
be an advantage to my case. 

Q. Were you one of the parties directly interested in the suit mentioned in that nine¬ 
teenth charge?—A. Yes, sir; I am. 

Q. And in that interest you employed Mr. Andrews ?—A. Yes, sir, I did. I was also 
the agent of fifty-odd people, widows, and orphans. 

By Mr. Smith : 

Q. Was Judge Kimball your counsel?—A. Yes, sir ; he was one of them. 

Q. Was George N. Steward your counsel?—A. Yes, sir; he was another. 

Q. And Dargan and Taylor ?—A. Yes, sir ; another. 

Q. And the two Hamiltons?—A. Yes, sir; they were, also. 

Q. And how long have they been residing here, and what is their character and 
standing at the bar ? 

(Objeeted to by Judge Busteed. Objection sustained.) 

Q. How long had George N. Steward been your acting counsel ? 

(Same objection and ruling.) 

Q. How often were you in the judge’s chambers while that case was pending?—A. 
Not at all. 

Q. Didn’t you, while the case was under argument, leave the court-room and retire 
to the rear here, with Judge Busteed?—A. No, sir; I did not. 

Q. Did you send any wine or liquors to the judge while that case was pending?—A. 
No, sir; I did not. 

Q. Did you get Julius Hesse to send any ?—A. No, sir. 

Q. Did you pay anybody else for wines or liquors sent to Judge Busteed.—A. No, sir ; 
I did not. 

Q. Did you, while the case was under argument, and on Saturday, when I closed the 


489 


argument lor the city, get up a steamboat excursion to Point Clear for Judire Busteed’s 
benefit ?—A. No, sir ; I did not. 

Q. Did you invite the guests ?—A. I invited some ; I invited you and Judge Busteed, 
and some others. 

, Q* Hid ) 011 iin ite me in the name ot Captain W illiams?—A. I invited you because 
it was Captain Williams’s arrangement, who asked me to invite my friends. 

Q• asn t the invitation given me at the foot of the steps going up to my office ?— 

A. 1 do not know where it was, hut I know I invited you. 

Q* Wasn t it conveyed in that way—that Captain W illiams, who had run the regular 
daily boat to Point Clear the previous summer, and with whom I was in the habit of 
traveling, had got a vessel here, and had some difficulty about getting her license?— 
A. Yes, sir; I told you that. 

Q. And that he was going to carry his vessel there to show her, and that he wanted 
me- 

Mr. Lougiihidge. I protest against this witness stating anything further. 

Mr. Bingham moved to strike out the whole matter. 

Mr. Bingham. I consider the questions both immaterial and unauthorized, but shall 
not insist on their being stricken out, and will allow the witness to answer to the 
fullest extent. 

Mr. Lougiikidge. 1 object. 

Mr. Smith. - and that he wanted me, as one of the patrons of the previous sum¬ 

mer, to go on the excursion, and invited me to go?—A. No, sir. I deny that you were 
invited as a patron of the previous summer at all. You were invited specially for that 
trip. I first requested Mr. Peter Hamilton to invite you, as he was one of my counsel, 
ami you were opposed to me, and I didn’t want anybody to go unless the counsel on 
both sides went. 1 had you invited simply because you were the opposing counsel, 
and 1 didn’t wish to have an excursion of that sort, that I had anything to do with, 
unless they were all there. 

Q. Were the expenses of the trip borne by you?—A. Not at all. 

Q. Did you have a special dinner that day ?—A. No, sir. 

Q. Did you have a special table that day ?—A. No, sir. 

Q. Was there any one but you and your guests at that table?—A. Yes, sir; several. 
There was quite a number of gentlemen, and quite a number that went on that boat 
that were not guests of mine. I had six or eight guests, and you were one. 

Q. Who paid for the dinner?—A. I paid for that dinner. I paid for those I invited. 
1 never am in the habit of inviting gentlemen to dine or drink with me unless I pay 
for it. 

Q. Did you invite anybody to go there to dine with you?—A. I did not. I invited 
them to make the trip, but the hotel dinner was given; there was no preparation for 
a i i y b o d y parti cularly. 

Q. Do you know that when 1 went to pay my bill I insisted that the clerk of the 
hotel should return you your money ?—A. No, sir; I don’t know anything about that. I 
paid your bill and I paid my own. Judge Busteed’s, Judge Kimball’s, and every other 
gentleman’s that I invited. I am not in the habit of inviting gentlemen to eat and 
drink with me unless I pay for it. 

Q. You don’t think it was anything improper, while you had a case under argument 
in the court?—A. I don’t know whether the case was under argument or not. 

Q. I ask you if it was not the very Saturday evening that I concluded my argument 
of the case ?—A. I don’t know. I don’t believe the case had been argued at all at that 
time. The collector of the port was invited, Judge Busteed was invited, Judge Kim¬ 
ball was invited, and you were invited, and you all went. There was nothing unusual 
in it at all. It was a little excursion of Captain Williams’s, and he made no charge for 
traveling on his boat. 

Q. Why ?—A. I had assisted him with means to get his boat. He had a difficulty about 
his boat being under the Mexican flag, and he was refused a license to run his boat after 
he got her ready, and he desired to make the trip to see what the boat could do. 

Mr. Lougiihidge. I object to any further testimony of this sort. 

Witness. Captain Williams asked me to invite such of my friends as I thought 
proper, and I invited perhaps about one-third of the gentlemen that went on the trip. 
The trip had nothing to do with any case at all. It was one of those social things 
that- 

Q. When a messenger was here, from the sub-committee of the House of Representa¬ 
tives, making inquiry into the conduct of Judge Busteed, last winter, to subpuma you, 
did you go out of the way and stay about ten miles from this town? 

Judge Busteed. I object. 

Judge Busteed. I withdraw my objection. 

Mr. Lougiihidge. I object. 

Witness. What time of the year was that ? 

Mr. Smith. Last winter. I don’t remember the date.—A. There was a messenger 
here the latter part of December; but I went on to Washington, expecting to be ex- 




490 


amined on the first of January. Mr. Smith saw me there. I think I arrived in Wash¬ 
ington the day previous to New Year’s day. 

Q. Last?—A. No; I got there on the 27th or 28th of December last. 

Q. And Mr. Smith saw you there?—A. Mr.Smith saw me there several times. I was 
in the Capitol every day while this examination was going on. 

By Mr. Lougiiridge : 

Q. Were you paid your fees for that?—A. No, sir. 

Q. Did you ever get anything ?—A. No, sir. I never did. I paid my own expenses 
there and hack, and while I was there. 

Q. Had you ever been subpoenaed?—A. No, sir. 

Q. At whose request did you go to Washington?—A. I went there of my own accord, 
because I was implicated in this charge. I went there to be examined. I never claimed 
any fees, or anything. 

By Mr. Smith : 

Q. Do you swear this messenger was here from Washington before you went on 
there?—A. Yes, sir. I will swear that a messenger came and summoned Horton, Ham¬ 
ilton, and others. 

Q. Were you subpoenaed then?—A. No, sir; I went of my own accord. 

Q. After that time, and when another messenger was here with a subpoena for you, 
did you avoid the service of that subpoena, and go away about ten miles from here ?— 
A. I will tell you all about it. About three weeks before that messenger arrived here, 
my half-sister died in New Orleans, and another half-sister was down there looking 
after her matters. I went to New Orleans to attend to these family matters, and after 
I got through there I went with my other half-sister near up to the place where she 
lives, near New Albany, Indiana. That messenger was here, I think, the latter part of 
February last. I left here in January—about two weeks or more before that messenger 
came. I attended to that business, and went with my half-sister as far as the mouth 
of the Ohio River—as far as Columbus, Kentucky; I turned around at Columbus, 
Kentucky, to return home, and on my way to the cars I met Mr. F. S. Lyon, of 
Demopolis, who asked me if I had been subpoenaed to go to Washington. He said 
they had subpoenaed the whole of the country, from Selma to Montgomery, Demopo¬ 
lis, and elsewhere. I told him no. I just made up my mind that Mr. Smith had done 
that to annoy me, and I would not gratify him by going on ; and I stayed there until 
the 1st of March, with a friend of mine. I would not gratify Mr. Smith, no way at 
all. I had been to Washington, and they had a right to examine me when I was 
there. I went for that purpose. I just concluded that Mr. Smith would not have the 
gratification of getting me again to Washington. 

Q. So you stayed out of the way to avoid the subpoena?—A. I did no such thing. 
I did not know there was any subpoena for me. I didn’t have any notice of any; but 
I did not choose to run the risk of knowing, and I stayed away, just exactly to disap¬ 
point you—that is exactly the case—and I would do it again, sir; I would. 

Q. I liavn’t any doubt of it at all.—A. Yes, I would. 

Q. When you were in Washington, did you ever tell me what was your business 
there ?—A. No, sir ; because I did not speak to you, and was not on speaking terms with 
you ; but your partner knew what my business was. 

Q. Did you tell him as a reason that Judge Busteed had requested you to come 
there?—A. I told Judge Busteed that I would go there, because I was implicated in it. 
Yes; I told your partner that very thing, because he requested me to go, and because 
I wanted to go myself. I paid my own expenses, and I had a right to go, and you saw 
me there. 

Q. Judge Busteed didn’t examine you.—A. No, sir ; he didn’t want to examine me. 

Q. What attorneys have you paid? 

(Objected to by Judge Busteed. Objection sustained ; Mr. Eldridge dissenting from 
the ruling.) 

Mr. Eldridge. On his direct examination the witness stated that he employed Mr. 
Andrews, and paid him. I think the question a legitimate one on a cross-examination. 

By Mr. Smith : 

Q. To whom did you give the money for Mr. Andrews?—A. I gave the money to Mr. 
Worrall. I requested Mr. Worrall to carry it to Mr. Andrews.' I took Mr. Worrall’s 
receipt for it. It was at my own request. I paid the money, and I felt responsible for 
the payment of it. I had to collect it by assessment, from fifty or sixty different people, 
and I wanted to get rid of the liabilities of its possession. 

By Mr. Lougiiridge : 

Q. Was this trip of which you have spoken the same one in which a cream-cake 
was alluded to?—I don’t know whether there was any cream-cake or not. There 
never was but one trip. I haven’t got through my statement about that trip. I was 


491 


stopped and questioned about something else. There was only one trip, and it had no 
connection with any suit or anything else. That is mere stuff that Mr. Smith has 
lugged in, just lor effect It don’t affect anybody in Mobile, because we are all known 
wmi'i U 18 onl .y. to attect persons abroad that it is lugged in. We are all perfectly 
well known, and my record will bear as good an examination as yours, Mr. Smith, in 
this town—and I believe a little better. 

Mr. Smith. I ask that a copy of the record may be filed in this case, in evidence, as a 
part ot the record. 


Judge Busteed. T object. (Objection sustained.) 

Mr. Loughridge. I sustain the objection, on the ground that it is irrelevant; that 
vJ 6 t* llotlnn S showing bribery m this case ; and because it is a useless expense. 
Mr.hMM. I decline to give an opinion on the subject of the record, but I leave 
it to the decision ot my colleagues. 

v O 


Charles R. Rice, sworn and examined: 


Mobile, Alabama, June 9, 1869. 


By Mr. Smith : 

Question. In the spring and summer of 1866, were you concerned in the pickery 
business, or as clerk for G. H. Cleveland?—Answer. I think it was in November, 1866, 
that I was connected with him. 

Q. Were you not, before June, 1866, clerk of Cleveland ?—A. I think it was in Novem¬ 
ber, 1866, that I went there; I am not certain. 

Q. Have you any means ot informing yourself as to when you went there?—A. Yes, 
sir; I can tell by referring to receipts and books at my room. It may have been in 
November, 1865, and that I was there in the spring of 1866. 

Q. Did you receive from John Hardy or Jacob Wilson any cotton to be carried to the 
pickery?—A. Yes, sir; I received an order from Mr. Hardy about the cotton. 

Q. From whom did you receive it?—A. I think that Cleveland and Williamson 
received it from Mr. Hardy. 


By Mr. Loughridge : 

Q. Do you know this personally, or from information ?—A. I knew the cotton came 
there, and Cleveland told me. 

Q. Do you know it came from Hardy ?—A. Yes, sir; I saw the order in writing. 

By Mr. Smith : » 

Q. Was there among it a lot of two hundred and thirty-nine bales of cotton marked 
F ?—A. There was a portion of it marked F. I was not book-keeper, but had charge 
of the yard. 

Q. Do you know anything about that cotton being changed in part or in whole ?— 
A. No, sir; I do not know. 

Q. Do you know whether a man by the name of Coleman was supervising that cot¬ 
ton ?—A. He was. 

Q. Do you know of any orders or instructions from Hardy to alter that cotton ?—A. 
I do not know. 

Q. You know nothing of any being changed; by which I mean good cotton taken 
out and poor cotton substituted, or the bales made lighter?—A. I know that the bales 
were made lighter. The cotton was brought there, and my instructions from Palmer 
and Coleman were to fix it in a certain way ; Coleman was superintendent. 

Q. In what way was it fixed?—A. It was cut down—the bales were. 

Q. To wlmt extent was it cut down ?—A. Some of them half. My instructions were 
to make the cotton weigh from two hundred and seventy-five to three hundred pounds. 
It had weighed six hundred pounds. 

Q. You obeyed your instructions ?—A. Yes, sir; of course. They were paying me to 
attend to the business, and, of course, I had to do as I was instructed by Coleman. 
Palmer was there almost every day. 

Q. That was the same cotton that came on the order of John Hardy?—A. Yes, sir. 

Q. W as any good cotton taken out of the bales and poor cotton put in?—A. No, sir; 
not to my knowledge, and I was there all tfie time. 

Q. What was done with those reduced bales?—A. They were sent to different 
warehouses. 

Q. What warehouses were they brought from; do you know?—A. I know that the 
principal portion was brought from the Magnolia warehouse. There was a lot of cot¬ 
ton brought from Rome; but the weighed, pressed cotton was brought from the Mag¬ 
nolia warehouse. We got seventy-five or one hundred bales at a time. When I got 
through altering it I would send it back to the warehouse as fast as I got through 
with it. 

Q. Do you know whether the bales so altered constituted a part of the cotton that 
was sold afterwards by John Hardy?—A. I know nothing of the cotton after I sent it 
to the warehouse from the pickery. 


492 


By Judge BuSTEED : 

Q. Was all tlie cotton that was received at your pickery upon an v orders sent back 
from your pickery into a warehouse?—A. Yes, sir. 

Q. And whether it was in the shape of a bale weighing three hundred and titty 
pounds, or in the shape of a bale weighing six hundred pounds, all the cotton was sent 
back?—A. Yes, sir; it was all sent back. 

By Mr. Smith : 

Q. Was it sent back in the same bales ?—A. As I said before, the bales were cut 
down, and the number of bales that went back was greater. 

Q. Wliat was done with that which was taken out of the bales ?—A. There were 
other bales made of it. For instance, if a bale weighed six hundred or six hundred 
and fifty pounds, we cut that down to three hundred and fifty, and the other cotton 
was thrown loose, and we would pack it into new bales. 

By Mr. Eldridge: 

Q. Did you mark the new bales differently from the old bales ?—A. Some of them— 
most of them—were the same marks. The receipt, I think, the book-keeper has will 
show. 

By Mr. Lough ridge: 

Q. Why were they marked differently ?—A. By orders from Coleman or Palmer. I 
had nothing to do with the marks. When cotton was sent there by factors in bad order, 
of course we always kept the same mark, and when we put the cotton in order the 
same marks were put on. I sent the greater portion of the cotton myself to the ware¬ 
house, and the marks were on the receipts, and I presume Mr. Cleveland has them. 

Q. Where is Cleveland ?—A. He was here yesterday. I suppose he has them. He is 
the proprietor. I think Mr. Cleveland has all the papers ; he ought to have them at 
any rate. 

By Mr. Smith : 

Q. Will you inform yourself as to whether you commenced at the pickery in Novem¬ 
ber, 1865, or November, 1866 ?—A. Yes, sir. 

By Mr. Bingham : 

Q. Do I understand you that the whole of this 239 bales of cotton was sent into the 
warehouse by you afterwards ?—A. The principal portion of it was sent by me back to 
different warehouses, and part of it by Herminger. 

Q. Do you know whether any portion of the 239 bales of cotton sent to your pickery, 
after being repaired, was marked otherwise than with the mark that it bore when it 
came there ?—A. Some of it was. 

Q. Do you know how much of it was ?—A. No, sir, I do not. I recollect distinctly 
from this fact, that Mr. Coleman had some of the cotton marked diamond C, 



By Mr. Eldridge : 

Q. Were they new bales that you made out of this cotton—packed in new canvas?— 
A. Most of it, and where the old packing would do, we would put it back. 

By Mr. Lougiiridge : 

D. What is meant by the mark “diamond C,” that you speak of ?—A. His name was 
Coleman : the first letter of the man’s name, I suppose. 

(The witness was allowed to go and examine his papers, and upon his return, stated 
that it was from November, 1865, until the spring of 1866—about the first of June— 
that he was employed in the pickery, as before stated.) 

Mr. Smith : I ask leave to file the record of the 600 bales of cotton case, of which 
the 239 bales formed a part, in Montgomery ; the proof tending to show that it is in 
Montgomery for trial, and I endeavor to establish that fact. 

Judge Busteed: 1 object. There is no‘proof tending to show any such state of 
facts in the evidence, taken before this committee, in this city, and the docket shows 
that the order to transfer the case to the middle district of Alabama was vacated, and 
it so stands on record on that docket. 

Objection overruled, and Mr. Smith is allowed to send a transcript, duly certified, to 
Washington. 


493 


Charles Walsit, sworn and examined: 


Mobile, Alabama, June 9, 1869. 


By Mr. Smith : 

Question. What is yonr business, and where do you reside?—Answer. I am a com¬ 
mission merchant, and president of the bank of Mobile, and reside in Moble. 

Q. Have you a commercial house in the city of New York?—A. Yes sir. 

Q. Did you spend last summer there?—A. Yes, sir. 

Q. Have you been to Judge Busteed’s house?—A. Within what time ? 

Q. Last summer ?—A. No, sir. I was at his house year before last. I stopped there. 

Q. Where did he then reside?—A. In Madison Avenue, New York City. 

Q. His family lived there? 

(Objected to by Judge Busteed. Objection sustained.) 

Q. How long have you known Judge Busteed?—A. I have known him since soon 
alter his arrival here in the city. I don’t know wliat time; 1805 or 1866, I suppose. 

Q. Did he state anything to you in reference to whether he intended to make a good 
thing of his office or not ?—A. I have no recollection of any remark of that kind. 

Q. Do you remember whether you told Judge Dargan so?—A. I have no recollection 
of that either. 

Q. Have the funds that have been deposited from Judge Bnsteed’s court, or any part 
of them, been transferred to the city of New York?—A. No, sir; not particularly. 
There is no other transfer, except the general funds of the bank. They keep an ac¬ 
count there. But it is like any other account. We do not make it special at all. 

Q. Were not any part of the funds, which are on deposit from the district court for 
the southern district of Alabama, transferred to the city of New York?—A. No, sir; 
not at all. 

Q. Have they been used in the exchange dealings with New York ?—A. Yes, sir ; in 
the ordinary business of the bank. 

Q. To Avhat amount of profit have they been used? 

(Objected to by Judge Busteed. Objection sustained.) 

Q. Has any arrangement been made with Judge Busteed, either in the name of the 
bank, or by you, in any character, by which he is to receive any advantages from the 
deposits of those moneys in the bank of Mobile ?—A. There has not. 

Q. I will ask you to refresh your recollection, and state whether you informed Mr. 
Peter Hamilton, the last part of last winter, soon after his return from Washington, 
that these funds had been transferred to the city of New York? 

(Objected to by Judge Busteed. Objection sustained.) 


By Mr. Eldjiidge : 

Q. Is there any understanding between you and Judge Busteed, express or implied, 
or between your bank and Judge Busteed, by w hich lie is to derive any advantage 
from making his deposits, or the deposits of the court, in your bank ?—A. No under¬ 
standing whatever to pay one cent to anybody unless they see proper to do so ; some¬ 
times, having funds for corporations with banks, the clerks, or the sheriffs, or the 
chancellors, if they see proper to divide interest, they w r ould be likely to do it; but 
there is no understanding with Judge Busteed to do so. 

Q. Either express or implied ?—A. No, sir. 

Q. You have no such understanding with him ?—A. No, sir. 

Q. Do you know of any fact that would tend to sustain any of the charges of cor¬ 
ruption and bribery against Judge Busteed ; if so, state them?—A. No, sir ; I know of 
none. 

Q. Have you ever read the charges against him ?—A. Yes, sir. 

Q. And you have no knowledge of any fact or circumstance that would sustain 
them ?—A. No, sir ; I know of nothing of the kind. 

Mr. Smith stated that William P. Hammond, the surviving partner of the firm that 
kept the warehouse in which the 239 bales of cotton were first stored, gives no atten¬ 
tion to the details of his business and knows nothing in respect to the 239 bales of cot¬ 
ton, the subject-matter of inquiry in these proceedings; Hertel, his partner, having 
died since the transaction. 

Mr. Smith requested the committee to subpoena the clerk of the district court for the 
southern district of Alabama, to produce before the committee his book containing a 
memorandum of money paid into the registry of the court, and a copy of all checks dra wn 
upon it, and the date thereof, as specified in the 42d rule in admiralty of the Supreme 
Court of the United States; which w T as allowed, Mr. Bingham dissenting. 

Mr. Bingham : I do not consider that the House of Representatives lias anything to 
do with the deposit-book of the clerk, or that it could be evidence against the accused. 


494 


Mobile, Alabama, June 9, 1869. 

N. W. Trimble sworn and examined: 

By Mr. Smith : 

Question. Have you in your possession, or is there in your office, the checks which 
have been drawn on the funds in the Bank of Mobile, deposited by the United States 
district court for the southern district of Alabama, and "which were given up on the 
last balance being struck and statement made by the bank ?—Answer. There may be 
some checks that I have not in my office. 

Q. Have you those here now?—A. I have no checks here at all; I have drawn only 
two or three or four checks. 

Q. I desire you to produce all the checks that have been drawn on the funds deposited 
to the credit of said court in said bank, from the time the account w T as opened with the 
said bank. 

Judge Busteed. That part of the demand which refers to a time anterior to the time 
when the witness was connected with the court I object to. 

Witness. I cannot answer that. I will state this: that when 1 was appointed clerk 
the former clerk handed me this book, in which I found a balance. This is my book. 
But I found a balance in the hands of the clerk at the time when I was appointed. I 
do not know anything about the former clerk’s checks, and I have never drawn any of 
the balance. 

Q. Who was the former clerk, and where is he now ?—A. Mr. Worrall was the former 
clerk; I think he is in Montgomery. 

Q. Have you any books, papers, or memoranda purporting to show the source 
from which the several deposits were derived that have been deposited in the name of 
said court in the Bank of Mobile, from the time the account was first opened with the 
bank ? And if so, state it. 

Judge Busteed. I object to that part of the question referring to a time anterior to 
the witness being clerk of the court. 

A. Paitly I can answer that, and partly I cannot. I have no books or memoranda 
previous to my appointment as clerk, except a balance of so many dollars, which was 
in the bank at the time I w as appointed. 

Q. When were you appointed clerk of said court ?—A. Some time in December, 1857— 
I don’t know the exact date. 

Q. Will you please produce all books and papers which you have showing from what 
funds any deposits in the name of said court were made in the Bank of Mobile? 

Judge Busteed. I object, because it necessitates the production of all the records of 
the court, and as wholly immaterial. (Objection sustained.) 

Witness. I will state this: that all I know concerning the deposits in the bank pre¬ 
vious to my appointment is, that 1 received a book with a balance of so much. I know- 
nothing about any other funds. That book I now produce. 

By Mr. Smith : 

Q. Does that book show' any more than a date, and the word “ deposit,” and the 
amount?—A. My book says, “Bank of Mobile in account with the United States district 
court.” That is the book furnished me by Worrall. This book was handed to me in 
February, 1868, by Worrall, or given me by the bank. The entry is, “ February 22,1868: 
To balance from old pass-book, $11,515 67.” Not a cent of which has been draw n since. 

Q. What does it show about your deposts ?—A. I did not deposit this money in these 
ship cases. It says, “ May 14 : Currency, $250,048 92—in the case of the Gallatin.” “ In 
the case of Talia, $88,556 63.” This money was never in my hands. It was just trans¬ 
ferred from one account in the bank to another. 


February 22, 1868: Balance from old pass-book. $11,515 67 

May 14, 1868 : Currency. 250j 048 92 

May 14, 1868 : Currency. 88, 556 63 

May 16, 1868: Currency. 1,948 65 

June 11, 1868: Currency. ^08 34 

December 16, 1868: Currency. 1,914 00 


Q. Now, please state from what sources those deposits were derived, if you know.— 
A. the first item ot $11,515 07, was placed in this book as a balance from the book 
of the former clerk. On May 14, the '$250,048 92 are the funds derived from the 
sale of the cargo of the ship Albert Gallatin. They were deposited in the bank by 
the underwriters, I think—this money was—and transferred to this book; it never 
passed through my hands at all, not a cent of it. The third item, of $88,556 63, was 
the proceeds of the sale of the cargo of the bark Talia, deposited also by the under¬ 
writers, and transferred also to the credit of the court in this book; the $1,948 65, I 
am not very positive about without seeing my books, because it is a- private suit in the 
court about some steamboats that judgment was given in favor of the libellant. This 
much money was paid into my hands, and was deposited iu the court, and I think w'as 








495 


drawn out the next morning; I gave it to Judge McKinstry, as proctor for the libel; 

I only kept it about twelve hours, I believe. The next item is $808 34 ; I think that 
was in some similar case; I will have to look over my checks to see that; I have for¬ 
gotten ; that was drawn out almost immediately ; it was a private suit. The next was 
$1,914, and was deposited to the credit of the United States; there was a suit of 
the United States against somebody on a bond, and they recovered that amount; I 
have given my order on General Spinner, the Treasurer of the United States, and he 
has got the money in that case. That is the end of that book. 

By Mr. Smith : 

Q. Please give the same information in respect to the moneys deposited in said bank 
to your credit, as clerk of the court.—A. I will. I would like to explain, before starting, 
that when 1 was appointed clerk Mr. Worrall had not finished his business; this book 
was turned over to me a short time after I was appointed clerk ; in the meantime, the 
bank gave me a small book of this kind, and I made a couple of deposits before I got 
the other book: “ Felmary 5,1808, bank of Mobile, currency, $693 00 ;” that is all in that 
book ; this $693 was from libels, filed by the district attorney, against a couple of 
steamboats here, and the fine in one case was $500, and in the other it was less; and I 
believe, upon a statement of facts made by the district attorney to the court, or agreed 
to by the court, the court remitted the fine, and this money was paid right back to 
them; and I say here, February 5, currency, check, 500 odd dollars, and March, $99 ; 
which carried out makes this. I gave the parties the check for it, and all this was 
paid back about as soon as it was paid in. 

Q. Please make the same statements in regard to the account kept by you in your 
own name with the bank of Mobile. 

Judge Busteed : I object, because it is a mere piece of impertinent inquiry, and 
not within the scope of the inquiry. (Objection sustained.) 

By Judge Busteed : 

Q. Will your check-book show every check signed or countersigned by Judge Bus¬ 
teed since you have been clerk of this court ? 

(Objected to by Mr. Smith. Objection overruled.) 

A. I do not know whether it will show or not. I did not put down whether it was 
signed or countersigned by Judge Busteed. When I was in Montgomery I received a 
letter from the Secretary of the Treasury to forward him a draft or order for this $1,914. 
I did not have my check-book in Montgomery, and I went to the bank and drew a 
draft on Washington for this money, and I then took it to Judge Busteed to sign it. It 
didn’t come out of my check-book. With that exception I think the check-book will 
show. I have not got down which he signed or which he countersigned, but my check¬ 
book shows what checks I have drawn. 

Q. Has any check been drawn by yourself or Judge Busteed against any fund in the 
court for any private purpose of the judge since you have been clerk, tor any amount ?— 
A. There has not; not a cent. 

By Mr. Smith : 

Q. Have any checks been drawn for the private purposes of anybody else, signed or 
countersigned by Judge Busteed ?—A. They have not, so far as I know. 

Mobile, Alabama, June 9, 1869. 

E. C. Y. Blake recalled: 

By Judge Busteed : 

Question. In the case of the United States vs. Ten Bales of Leather, and in the case of 
the United States vs. Nineteen and a half Barrels of Whisky, about which you were ex¬ 
amined, and in which orders of distribution were produced, and copies of which orders 
of distribution you have engaged to certify; as matter ot fact, was there ever any 
money paid in either of those cases to any in former?—Answer. No, sir. 

Q. Doesn’t the whole of the fund remain in the treasury of the court?—A. Yes, sir; 
it stands gross ; that is, the whole of it. 

Judo-e Busteed. I make the same proposition in regard to witnesses resident m Mo¬ 
bile tluit I made in regard to residents of the middle district: that it my manners as a 
judge are to be an issuable plea, that I stand ready to produce any number of wit¬ 
nesses now for your consideration, or to take the same course in relation to them that 
I had the honor to suggest to you in Montgomery, and upon which you ruled. And I 
also include in this statement all that I said in Montgomery applicable to Mobile. 

Mr. Smith. I stand ready now or at any time to meet any evidence Judge Busteed 

may offer. 


o 


' 






» 

■ 


■ ■ 









i 4 





































*7> 

■ % 4 : 


.<•». a 


r\ i + o 

K < ✓ * ® ^ 

V A* .’aV^ 

^ v 1 * M#W?T, 


’ A y P~ 

• »S 'J -4 ^ ^ •*> 

o. 'o. * - A <. 

A o 0 " 0 ♦ ^ 

, ° ,-r <\<ssstrv ^ . 

* '’ov*' . ® ' sMA - A. 

*0 v- 


.C,^ 

,v ^ 


,. ,0* 

0 ^ 

C° *‘ 

'■*■ o' 1 

4°° \ ‘ *..A A A ' ■* • A 0 A 

*-**■•* .% .y^SV. V „<A / * * • 


<rX 



+ 0 


t >° A 

• .0 A 


- 


A-A 


: A v -A 
* A ^p. 


> A. 


C, ' . * s i .0 'S 

-d-^ 0^ t « 1 ' 6 * ^O 

«* * A 

^0 


o o A. 


\ 


A 


c 0 N c * 


0 


*’ 


O • A 


a °* 


, A’ "" V'am?'" 5,0 A • 

^ °o *A^o n 0 4* ^ * 

<y % ° N 0 a 0 ^ n v< 

v ^ v ^ 
♦ tfxMiiftfk** ^ A » nf\^>$rA, ° ^> .<^ * 


'o . A * 


A- 


A y P~ 

V <S> 


o » A 4 a'V 


AA 


<k 6 0 " ® « 


& C ° ° * 


A * °* 


4°+ 

& .’* -a.^ 

«k "’ A* .... 


IA * V 

. ^ 0* 

* 4 c> 


O N o 


*> 


“> 4~ v cA * 

A • ••' A , A ' 

tp G o v ° 0 

lA ^ ^ ^ 


: ^ 

“ 


^ . »* A f'o: 

A •' 1 A ^ 

4 ,° a x> v 


^ A 

vv 


A, 




A , o “ o . 


0 


.4' 


• ‘ ' * + O 




*P> A 

0 




>r ^ 

* «.► o, '- 

A % * 
v v »*•*' i 


^0 


. ^° -%. 
* rt 0 ^d 


. o 


o v 


?v 0v ^ 


A / 


A / 


'o . * * 


& V r. o N o * 


A o 

^ Ap *y> 

* *y <p> 

^ % 

-0^ «• \L! ♦ ^o o 




'o . * * 






D N 0 


> ^ °> 

>» > sK <• < ^^f/D^S' A 

0^ AA > V % . V *'* cv 

o A* A V * ^ 

°. W ; 

° A*\ WJfW*' 

^ r.° . t -. Ki A 


4^ <* 

A V 4 ; 


'P; 4 

^ 0 


?> 0 A- 


0 




«• 7. 

■“ A-o^ 





^ O . 

v<V 

f“ «j. * < ’ * . V J 

4 ? ,>*•»'. >. V* ! 

^ ^ ♦ mA° 0 ^ 

91 PWWMu 0 

+ ^ ^ «r ^ °.VW 

O "'V. 'o.a , 

! -A „4 4 



A-' - o H o 


o \0 7j ’ 

\ V < ^ A . * 

• „0 "A ‘ 



^ o' 


4 O. 

Ia v^s 





iPV. 11 



























<*> * 

O *0 . A 

? O r 0 N 0 Jb ^ 

O A *Vayv!<* V 
^ * vv -V ' 'SnxW n%v * v- 

^ ^oK 



a A*/* 

' * 4p. o 

' «y V • ts 2* 4 

VV> O 'o . * 

n V . t » * * ^ 

c° y^/mL* o .A » c 





: ° ^ ° 

v <C' : ^' « 0A.;': ! 'P' 17 o $ V, *■ * A O 

♦ bC^ *%»U\voS> * v <y *. <^>y//\]^ ^ 

I 1 * aV O *„n° <?* * ’ V ,- 

<v , >** ° n ° <y vp. «’/■»* av c 

• ^- ,v t *y<-y% vO t v v v i s# *^ 

'* w y^y \<<? y 

* **s °- w ^ s ‘* v v \ ■ 


<, ‘-tt. • • g t \ *-•. t ■«' >v' "V *«• 

* <° o • 1 ' •* ‘o A-' c °» •„ Pi> 

* * 3 ^ . v * ag’rflT/tpz* O 4^’ 

♦ ^ - V> K ® 

\0 v*> 

* 0 ^ A b 



o 


V* 4p-, O 


V v>. ■'**•’ <G* -o. A 





v ^y ^ 




, * ,0* ..‘V. ■''o, 

'. %, «° !£$%&' v -4 

^o x • cyyy * o y 

4°, 


. w i° ^ 

O ^ •> *0 J 

<?> - * / ^ * ,^ v o * a H o * y ^ 

a v o^4y*+ % y ***£' "> \> yzj+^y ^ ^ 

«. •- . ..^ ^V A®’ *■ rv^/,** vi>- «, x4- ^ 

vP *a\W/7), b y * TQmJ%, * 

: vv " 

** ^ \ ^ Im.' -. 

»■'••*• ,<v' V **.... , 

^ .o' o y' c° * °* "v 0 4 

* v “ o Y * - o y 

4^ 


^ V* - 

vP V a 



V^ 


5 * 0 





, V 

^bf ; 

^ O <0 v\ 

> s V’ tf. 

0 . ■^'^,' cy % 

xO v »i*°- > V % c> ,0 , 

y ? /jibr- % /' ** 

° c4> 'V * yy^y * i 

* ^/‘ <3 V - •’•A' 1 v)^ * A v' .“jL 

* .6^ V> 'o. A * *v ^ 

I; ^ " S ^ W * ^ 

* J ^ O i0 V% 

>i v- <y\. * 

* v ^b o° ^ * 

v . # ^ ° - 0 A u 




f° 'V <^ r °4 

^ y *°- '> \> 



^ o 

V 







* 4 0. ^ vv , 

v <xy *<* * 

^ W\\\\r * 

% 4XJ O o> 4 aV * r\ 

••■’* & .. °i. ••*•• ^° 





# \ 
* o > 




> <y vp, 


A V ^ : 

/ ^ %> \ 

A v ~«p ~ * *■ a\ V 'v, ' • * 5 ^ - 

o°' yJ/t??y °o 4& ^ "° 

V ^ 

v T(1PA ,J ^. 0 ^ 

^ *^ v ~ % \* -o.^ V> *'*y±y* n o ^ o 

A v V *" 1 V ON ° A° V <?> °^ 

<0^ a y *°- > v *JL^L/* o <0^ ^ V 

► ♦ -fA^{^ A. ° ^>- * &#Tv^ * ^ * 

; Vv •; ; V4 

* 4? ^ •-^-jpra ^ 

v ,G V --- 

^o o 0 ' - 0 ♦ ■ < ^ 1 >, o v • 1 ' a ♦ o <G 

O ^ v (r y .^/vy^-y + o .1*0- 

i <N v 

-I'll MS'. 70 Ti - 1 

: -^R : /°- • 




• L* A 




o * JL 
































































































